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J 


A  TREATISE 


CONSTITUTION  AND  JURISDICTION 


THE  COURTS  OF  THE  UNITED  STATES, 


PLEADING,  PRACTICE  AND  PROCEDURE  THEREIN, 


THE  POWERS  AND  DUTIES  OF  COMMISSIONERS  OF  THE 
CIRCUIT  COURTS ' 


(Jjorms  for  bM  djourls  attti  dfommtssioners. 


BY 


GEORGE    W.   FIELD, 

AUTHOR  OF  A  TREATISE  ON   "THE   LAW  OF  DAMAGES,"    "THE    LAW  OF  PRIVATE 
CORPORATIONS,"   ETC. 


PHILADELPHIA: 

T.    &    J.    W.    JOHNSON    &    CO., 

LAW    BOOKSELLERS    AND    PUBLISHEES, 
53  5    CHESTNUT    STREET. 

1883. 


T 

F^l  5-5*2  CO 

Entered  according  to  Act  of  Congress,  in  the  year  1883,  by 

T.    &   J.    W.    JOHNSON    &   CO., 

In  the  office  of  the  Librarian  of  Congress  at  Washington,  D.  C. 


PRESS    OP    HENRT    B.    ASHMEAD, 

1102  &  1104  SanBom  Street. 


CJ 


PREFACE. 


The  several  courts  of  the  United  States  are  of  growing  interest 
and  importance  to  the  profession,  and  the  author  of  this  treatise 
cherishes  the  hope  that  it  will  be  found  a  useful  guide  to  practice 
in  them. 

The  jurisdiction,  pleading  and  practice  of  the  Court  of  Claims 
have  heretofore  received  no  special  treatment  by  any  author,  if  we 
except  the  valuable  monograph  of  the  Hon.  William  A.  Richardson, 
one  of  its  judges,  from  which,  with  his  permission,  we  have  freely 
copied  in  the  notes  in  treating  these  subj"-t_. 

It  is  believed  that  the  practitioner  will  find  in  this  volume  all 
that  will  be  necessary  to  guide  him  to  practice  in  this  court. 

We  have  also  herein  considered  the  powers  and  duties  of  com- 
missioners of  the  circuit  courts,  and  furnished  forms  for  these 
numerous  and  important  officers  and  the  profession,  in  proceedings 

before  them. 

G.  W.  Field. 

July,  1883. 


J67419 


CONTENTS. 


CHAPTER   I. 

PAGE 
JUDICIAL    POWER    OF    THE    UNITED    STATES  .......  1 

CHAPTER   II. 

CONSTITUTION    AND    OIJGANIZATION    OF    FEDERAL    COURTS       .....       10 

CHAPTER   III. 

ORGANIZATION    OF    DISTRICT    COURTS  ........       20 

CHAPTER   IV. 

TERMS    AND    SESSIONS    OP    THE    DISTRICT    COURTS  ......       37 

CHAPTER   V. 

JURISDICTION    OF    THE    DISTRICT    COURTS       ........       54 

CHAPTER    VI. 

PLEADING    AND    PRACTICE    IN    ADMIRALTY    IN    THE    DISTRICT    COURTS       .  .  .70 

CHAPTER   VII. 

JUDICIAL    CIRCUITS    AND    ORGANIZATION    OF    THE    CIRCUIT    COURTS  .  .  .    101 

CHAPTER   VIII. 

JURISDICTION    OF    THE    CIRCUIT    COURTS .    108 

CHAPTER   IX. 

PRACTICE    AND    PROCEDURE    IN    SUITS    AT    LAW    IN    THE    CIRCUIT    COURTS  .  .    175 

CHAPTER   X. 

PRACTICE    AND    PROCEDURE    IN    EQUITY    IN    THE    CIRCUIT    COURTS  .  .  .    184 

CHAPTER   XI. 

SUPREME    COURT,    ORGANIZATION    AND    SESSIONS  ......    222 

CHAPTER   XII. 

ORIGINAL    JURISDICTION    OP    THE    SUPREME    COURT    AT    LAW    AND    IN    EQUITY  .    227 

CHAPTER   XIII. 

JURISDICTION    ON    WRITS    OF    ERROR    AND    APPEAL  ......    239 

CHAPTER   XIV. 

PRACTICE  AND  PROCEDURE  ON  WRITS  OF  ERROR  AND  APPEAL   ....  272 

CHAPTER   XV. 

WRITS    OF    PROHIBITION •    293 


VI  CONTENTS. 

CHAPTER   XVI. 

PAGE 
WRITS    OF    MANDAMUS 298 

CHAPTER   XVII. 

WRITS    OF    HABEAS    CORPUS  ..........    304 

CHAPTER   XVIII. 

COURT    OF    CLAIMS — JURISDICTION,    PLEADING,    PRACTICE    AND    PROCEDURE     .  .    314 

CHAPTER   XIX. 

COMMISSIONERS    OF    THE    CIRCUIT    COURTS 385 

CHAPTER   XX. 

PROCEDURE    IN    CRIMINAL    CASES 415 

CHAPTER   XXI. 

PROVISIONS  OF  THE  REVISED  STATUTES  COMMON  TO  MORE  THAN  ONE  COURT    .  425 

CHAPTER   XXII. 

PROVISIONS    OF    THE    REVISED    STATUTES    RELATING    TO    JURIES,    ETC.     .  .  .    448 

CHAPTER   XXIII. 

FEES    AND    COSTS  .  .  .- 456 

CHAPTER   XXIV. 

PROVISIONS    OF    THE    REVISED    STATUTES    RELATING    TO    EVIDENCE  .  .  .    475 

CHAPTER  XXV. 

PROVISIONS    OF    THE    REVISED    STATUTES    REGULATING    PROCEDURE  .  .  .    504 

CHAPTER   XXVI. 

PROVISIONS    OF    THE    REVISED    STATUTES    ON    LIMITATIONS 526 

RULES. 

General  Rules  of  the  Supreme  Court 529 

Rules  in  Equity 546 

Rules  in  Admiralty        ...........  575 

Rules  for  the  Court  of  Claims  .         .         .         .         ...         .         .'        .  593 

CLASSIFICATION  OF  FORMS. 

Forms  of  Caption  and  Title  of  Causes  in  Suits  at  Law  and  in  Equity  611 

Forms  in  Suits  at  Law 613 

Forms  in  Equity 625 

Forms  in  Admiralty 704 

Forms  for  the  Removal  of  Causes 764 

Forms  in  Criminal  Cases 775 

Forms  in  Proceedings  before  Commissioners 785 

Forms  for  the  Supreme  Court     .......'..  801 

Forms  for  the  Court  of  Claims  . 845 


TABLE  OF  CASES. 


Abby,  The     . 

PAGE 

82 

Atocha  V.  United  States 

PAGE 

344 

Ablemau  v.  Booth 

55,  149 

Ault  V.  Zeheriug   . 

494 

About  18,000  Gals.  Dist.  Sp 

r. 

83 

Aurora,  The 

60,  62 

Abraucher  v.  Schell 

156 

Austin  V.  Miller     . 

432 

Adaline,  The 

70 

Avery,  The    . 

2^ 

,   90 

Adams  v.  Board  of  Com. 

112 

Ayers  v.  Carver     . 

248 

V.  Jones     . 

171 

V.  Law 

428 

Bacon  v.  Howard 

, 

498 

V.  Lesher  . 

494 

Bagley  v.  Yates     . 

, 

435 

V.  Woods  . 

528 

Bagnel  v.  Broderick 

, 

270 

V.  Wray     . 

494 

Baker  v.  Peterson 

, 

155 

iEgo,  The      . 
Akerly  v.  Vilas 

203 
167 

Ballenger  v.  Mackay 
Bangel  v.  Brodrich 

213 
270 

Aldrich  v.  Etna  Ins.  Co. 

269 

Bank  v.  Dalton 

498 

Alecta,  The  . 

295 

V.  Deveaux   . 

135 

136 

Alice  Tainer,  The 

17 

8,  186 

V.  Green 

172 

Alicia,  The    . 

7,  246 

V.  Halstead  . 

183, 

427 

429 

Alire  d.. United  States  . 

341 

V.  Hoof 

245 

Allen  V.  Allen 

215 

V.  Labilut     . 

180 

V.  Blunt       .         .      140,  18 

2,  478 

V.  McVeigh  . 

. 

265 

V.  Massey     . 
V.  McKay      . 
V.  Newberry 
V.  Robinson 

11 

431 

93 

67 

0,  148 

V.  Wheeler   . 
of  Bethel  v.  Pahquioque 
of  Kentucky  v.  Wister 
of  United  States  v.  Danie 

1   '. 

497 
143 
230 
242 

V.  Thaxter    . 

494 

V. 

Deveaux 

136 

V.  United  States  . 

345 

V. 

Moss 

112 

Almeida,  The 

66 

V. 

Planters' 

Alston  V.  Manning 
Amelia,  The 

449 
64 

V. 

Bank  . 
Ritchie  . 

230 
220 

American  Ins.  Co.  v.  Canton 

449 

V. 

Smith    . 

286 

Ames  V.  Smith 

182 

V. 

Swan 

277 

Amiable  Nancy,  The     . 

80 

V. 

White 

111, 

Amory  v.  Amory  . 

15 

7,  497 

184, 

18C 

,  199, 

221 

238 

Andrews  v.  Wall  . 

60 

of  West  Tennes 

see  V.  Citi- 

Anna,  The     . 

3 

5,  466 

zens'  Bank 

266 

Anne,  The 

66 

Baker  v.  Jackson  . 

. 

431 

Appling  V.  Bailey 

300 

Banks  v.  Carrolton  R. 

205 

Arapahoe  Co.  v.  Kan.  Pac.  R.  Co 

116, 

Barber  v.  Barber   . 

111 

157 

V.  Root 

, 

500 

Arcy  V.  Ketchum  . 

499 

Barlow  v.  Steel 

496 

Arlington  v.  Van  Huton 

300 

Barnard  v.  Fowler 

, 

497 

Armstrong's  Foundry   . 

8 

1,  139 

Barnes  v.  United  State 

s 

476 

Armstrong  v.  Brown 

481 

V.  Williams 

, 

260 

286 

V.  Carson     . 

500 

Barnet  v.  Day 

407, 

478 

V.  Treasurer 

266 

Barney  v.  Baltimore  C 

ity 

116, 

132, 

205, 

Arndt  v.  Arndt 

499 

208 

Arthurs  v.  Hart     . 

244 

V.  Globe  Bank 

110 

133 

Atherton  v.  Fowler 

268 

Barns,  In  re 

305 

Atkyns  v.  Buitows 

58 

Barrett  v.  Failing. 

497 

Atlantic  and  Ogdensburgh, 

The 

68 

Barron  v.  City  of  Baltimore 

125, 

264 

Atlee  V.  Potier 

155. 

Barrow  v.  Hunton 

, 

149 

Vlll 


TABLE   OF   CASES. 


PAGE 

PAGE 

Barrow  v.  Steele   . 

495 

Blossom  V.  Railroad  Co. 

251 

Barry  v.  Mercein    . 

lie 

,   243 

Bogert  V.  United  States 

341, 

343, 

349 

Bartemcyer  v.  Iowa 

264 

Bollman,  Ex  parte 

125 

Barth  v.  McKeever 

121,  183  1 

Bonaparte  v.  Camden  &  N 

R. 

Co*. 

124 

Bartlett  v.  Crittenden    . 

141 

Bond  V.  Brown 

360 

Bas  V.  Steele 

, 

434 

V.  United  States  . 

347 

Bassett  t^.  United  States 

170 

Bonnafee  v.  Williams  119, 

120 

121, 

136 

Bates  V.  Lyon 

, 

500 

Bonnafon  v.  United  States 

345 

Batesville  Inst.  v.  Kauffman 

132 

Bonner  v.  United  States 

31*4, 

339 

Bath  County  v.  Amy     . 

175,  301  1 

Bonyson  v.  Miller 

. 

73 

Battin  v.  Tagget    . 

14 

2,  426 

Boon  V.  Chiles 

. 

194 

Batting,  Ex  parte  . 

299 

Borgandus  v.  Trinity  Church 

238 

Bayden  v.  Burke    . 

489 

Boston,  The 

70,  83 

Bayerque  v.  Coben 

235 

Bottomley  v.  United  States  . 

463 

Beale  v.  Berryman 

500 

Boudereau  v.  Montgomery 

481 

Beardsley  v.  Little 

180 

Bourcicault  v.  Fox 

14*1, 

426 

Bechtel  v.  United  States 

487 

V.  Hart 

141, 

426 

Beckwith  v.  Easton 

458 

Bowen  v.  United  States 

80 

Beebe  v.  Russell    . 

24 

7,  248 

Bowie  V.  Talbut     . 

404, 

407 

Beebes,  Ex  parte  . 

43 

5.  481 

Boyce  v.  Grundy  . 

433 

Beecher  v.  Gillett 

11 

0,  148 

V.  Tabb 

432 

Beers  v.  Haughton           70,  £ 

6,  18 

O',  427 

Boyd  V.  Alabama  . 

431 

Belfast,  The 

58, 

59,  66 

Boyle  V.  Zacherie         182, 

227 

229 

239 

Bell  V.  Davidson    . 

214 

Brackett  v.  The  Hercules 

65,  91 

V.  Morrison     .         .      4( 

)5,  40 

6,431 

V.  People 

. 

496 

Bellows  V.  Bank    . 

286 

Bradford  v.  Jenks 

135 

Belton  V.  Fisher     . 

496 

Bradley  v.  Reed     . 

429 

Benchley  v.  Gilbert 

164 

V.  Rhines 

134 

Benner  v.  Porter   . 

449 

V.  United  States 

340 

Bennett  v.  Bennett 

496 

Bradstreet,  Ex  parte    244, 

300 

301 

304 

V.  Boggs  . 

114 

Bragg  V.  Lorio 

27 

V.  Butterworth 

112 

Branches  v.  Schell, 

164 

Bentley  v.  Phelps 

220 

Brashear  v.  West  . 

431 

Bently  v.  Sevier     . 

427 

Breadlove  v.  Nicolet 

124 

Bernard  v.  Gibson 

24 

9,  250 

Breithaupt  v.  Bank 

124 

Berry  v.  Mercein    . 

281 

Brig  Aldebaran,  The 

86 

Bertonneau  v.  Directors 

149 

Brig  Blohm,  The  . 

65 

Bethel  v.  Damaret 

268 

Brig  Caroline,  The 

82 

Bevans  v.  United  States 

285 

Brig  Nestor,  The  . 

60 

Bible  Society  v.  Grove        1. 

)5,  15 

7,  158 

Briggs  V.  Johnson  Co. 

300 

Bicknell  v.  Field  . 

49 

7,  498 

V.  Campbell 

500 

Biddle,  Ex  parte    . 

110 

Ex  parte     . 

298 

Bill  V.  Davidson    . 

480 

Bright  V.  White     . 

495 

V.  Morrison     . 

40 

3,  478 

Briscoe  v.  Bank     . 

118 

136 

Bingham  v.  Cabot 

11 

7,  137 

Bristol,  The  . 

94 

V.  Luddington 

.      44 

1,  442 

British  Prisoners,  The 

411 

V.  Wilkins 

74, 

80,  90 

Britton  v.  Butler   . 

528 

Binghamton  Bridge 

265 

Brobst  V.  Brobst    . 

171 

Bird  of  Paradise,  The  . 

59 

Brockett  v.  Brockett 

248 

Bishop  V.  United  States 

.     349 

Bronde  v.  Haven    . 

65 

Bissel  V.  Edwards 

.     495 

Bronson  v.  Keokuk 

442 

Bissill  V.  Briggs     . 

.     499 

V.  Kinzie 

189 

Blackwell,  The      . 

63 

V.  La  Cross  & 

\L 

R.'Co.  . 

215 

Blair  v.  Allen 

.      170 

V.  Railroad  Co 

250 

Blauchard  v.  Sprague   . 

.      142 

Brooks  V.  Byam     . 

211 

456 

Blanche  Page,  The 

79 

V.  Hunt 

239 

Blease  v.  Garlington 

.     175 

V.  Norris    . 

. 

251 

Blitz  V.  Columbia  Nat.  Bank 

£ 

7,  425 

Broughtour  v.  United  S 

ta.les 

340, 

341 

Block  V.  United  States  . 

.     34 

7,  481 

Brown  v.  Aspden  . 

290 

Blodget  V.  Jordan 

.     495 

V.  Atwell,  . 

266 

TABLE    OF   CASES. 


IX 


PAGE 

Bro'tt'n  V.  Brown    .         .         .         .119 
V.  Chesapeake  &  0.  Canal 

Co 179 

V.  Edson     .         .         .     495,  501 

V.  Johnson  .         .         .     496 

V.  Keene     .         .         .117,  137 

V.  Lull         ....       65 

V.  Pierce    .         .         .         .211 

V.  Piatt       .         .         .         .404 

V.  Pond       .         .         .         .176 

V.  Shannon        142,  158,  245,  426 

V.  Strode    .         .         .         .118 

V.  Tarkington     .         .         .481 

V.  The  Independence  .     490 

V.  United  States  .     314,  340 

V.  Union  Bank    .         .     249,  250 

Browne?;.  Browne         .         .         .119 

Bruce  v.  United  States  .         .     487 

Bryan  v.  Bates       ....     267 

V.  United  States  .         .     343 

Buchanan  v.  Post  .         .         .     500 

Buckley  v.  United  States      .         .     503 

Buford  V.  Buford  ....     497 

Bullock  V.  Wallingford  .         .     489 

Burdett  v.  Abbott  .         .         .309 

Burdick  v.  Hale,    ....     155 

Burdwick  v.  Hale  .         .         .16,   156 

Burleigh  Rock  Drill  Co.  v.  Lobdel     142 

Burlen  v.  Shannon         .         .         .     500 

Burnett  v.  Butterworth  .         .     285 

Burnley  v.  Stevenson     ,         .         .     497 

Burr  V.  Des  Moines  Co.  .         .     260 

V.  Durgee       .         .         .     142,  426 

V.  Gratz         .         .         .         .239 

V.  Gregory     .         .         .     141,  426 

Bushnell  v.  Kennedy     .         .         .     133 

Bussard  v.  Catabino      .         .         .     405 

Butler  V.  Young    ....     175 

Butner  v.  Miller     .         .         .     164,  167 

Butterfield  v.  Usher       .      247,  249,  251 


Cacullu  V.  Emerling 
Cadle  V.  Tracy 
Caldwell  v.  Jackson 

V.  Target 
Camanche,  The 
Cambuston  v.  United  States 
Cameron  v.  McRoberts 
Campbell,  In  re     . 

V.  Boyreau    . 

V.  Read 

V.  The  Uncle  Sam 

V.  United  States 
Canadian  Prisoners'  case 
Cannon  v.  New  Orleans 
Canton  v.  American  Ins.  Co 
Caperton  v.  Bowyer 
Cappell  V.  Hall 
Carey  v.  Curtis 
Carleton  v.  Bickford 


.  260 
.  143 
.  274 
.  205 
63 
.      248 

117,  132 
.  475 
.  169 
.  262 
71 
.  341 
.  309 
.     266 

259,  457 
.  265 
.  82 
.  113 
.     498 


PAOE 

495,  501 

132,  204 

215 


11 


Carlisle  v.  Tuttle  . 
Carneal  v.  Banks  . 
Carnocan  v.  Christie 
Caroline,  The 

Carpenter  v.  Providence  Ins.  Co. 
V.  United  States 
V.  Williams  . 
Carraher  v.  Brennan     . 
Carrington  v.  Bents 

V.  Florida  R.  Co 
V.  Pratt 
V.  Stimpson 
Carter  v.  Bennett . 
Case  V.  McGee 
Case  of  Runaways 

Sewiug  Machine  Co 
Cassidy  v.  Leetch 
Centurion,  The 
Certain  Logs  of  Mahogany 
Chadwick  v.  United  States 
Chaires  v.  United  States 
Chamberlain  v.  Chandler 

V.  Eckford 
Chappedelaine  v.  Dechenaux 
Charles  Mears,  The 
Charter  Oak  v.  Star  Ins.  Co 
Cheen  v.  Gray 
Cheever  v.  Wilson 
Chemung  Can.  Bank  v.  Lowrey 
Cherokee  Nation  v.  Georgia       230 
Cheshire,  The 
Chicago  V.  Sheldon 
Chiles,  In  re 
Chisholm  v.  Georgia     . 
Chittenden  v.  Darden    . 
Christian  v.  United  States 
Christmas  v.  Russell   117,  120,  137,  498, 

499 

Christy,  In  re         .         .         .     295,  296 

Church  V.  Crossman      .         .         .     499 

V.  Hubert  .         .         .     490 

V.  Stack    .         .         .         .300 

Chusan,  The  ...         59,  61 

Circassian,  The  Steamship  .       60,  463 

City  V.  Lamson      ....     432 

City  Nat.  Bank  v.  Paducah 

City  of  Lexington  v.  Butler 

Norwich,  The   . 

Phila.  V.  The  Collector 

Washington,  The 

Clare  v.  Nat.  Cit.  Bank 

Clark's  Ex.  v.  Van  Reimsdyk 

Clark  V.  City  of  Janesville 

V.  Depew 

V.  Hackett   . 

V.  Mathews 

V.  Mathewson 

V.  Pratt 

V.  Reyburn  . 

V.  Smith 


78 
201 
342 
270 
157 
191 
166 

61 
404,  478 
496 
495 
464 
114 
498 

62 

72 
485 
287 

69 
135 
124 

62 
0,  148 
498 
500 
179 
235 

76 
432 
436 
4,  5 
182 
352 


181 


13 


143 
136 
94 
164 
463 
457 
101 
135 
494,  495 
278 
209 
120 
500 
205 
110 


TABLE    OF    CASES. 


Clark  t'.  White 
Clearwater  v.  Meredith 
Clement,  The 
Cleveland,  etc.,  R.  Co.  v. 
Clic-quot's  Champagne  . 
Cliftou  V.  Sheldon 

I'.  United  States 
Climents  v.  Moone 
Clinton  v.  Englebricht . 
Coal  Co.  I'.  Blatchford 


131, 


114 


Coates  I'.  Muse 
Cochrane  v.  Duner 
Cockroft  V.  Vose   . 
Coddington  v.  Richardson 
Coffee  V.  Hayward 

V.  Planters'  Bank 
Coffie  V.  Neely 
Coffin  V.  Jenkins    . 
Cohens  v.  Virginia      113,  11 


PAGE 

201 

440 

72 

236 

503 

2,   245 

503 

204 

449 

118,  119, 

134,  151 

.     431 

.      142 

266,   268 

260,  270 

.      128 

.     135 

.     494 

84 

149,  234, 

264,  270,  285 

132,  205,  441 


Coiron  v.  Millandoa 

Coleman  v.  Martin         .         .         .212 

V.  Waters        .         .         .     495 

Collie  V.  United  States  .         .     428 

CoUum  V.  Eager    ....     248 

Colson  jj.  Lewis     .         .         .      -   .     123 

Colt  V.  Milliken     .  .  .  .494 

Commercial  Bank  v.  Slocumb    114,  135 

Commissioners  v.  Aspinwall  .     302 

V.  Philadelphia     .     300 

Commonwealth  v.  Denison   .         .     298 

V.  Feely        .         .     425 

V.  Green       .         .     496 

Bank  v.  Griffith   .     269 

Sav.  Bk.  V.  Corbett  156 


Condit  V.  Blackwell 
Cone  V.  Hooper 
Confiscation  Cases,  The 
Connolly  v.  Taylor 
Connor  v.  Scott     . 
V.  Peugh    . 
Conway,  Ex  parte 
Cook  V.  Burnley    . 

V.  Ford 

V.  Moffatt 

V.  United  States  . 
Cooke  V.  Woodrow 
Coons  V.  Gallagher 
Cooper  V.  Galbreth 
V.  Gordon  . 
Copeland  v.  Memphis  &  Ch 

ton  R.  Co. 
Copelin  v.  Ins.  Co. 
Corbet  v.  Gibson  . 

V.  United  States 
Corbin  v.  Van  Buent     . 
Corfield  v.  Coryell 
Cornell  v.  Williams 
Cornet  v.  Williams 


117, 
110, 
240, 

240, 


24 


arles- 


170, 


501 
498 
27 
121 
156 
243 
300 
405 
158 
113 
347 
244 
269 
115 
131 

122 
260 
180 
349 
152 
496 
403 
475 


Corning  v.  Troy  Iron,  etc.  Fac. 
Cornwell  i'.  White  Water,  etc.  R 

Co 

Cotton  V.  United  States 
Course  v.  Stedman 
Cousin  V.  Blane     . 


Covington,  etc.,  Co.   v.  She 


Cox  V.  Co.K     . 
Crafts  0.  Clark 
Craig  V.  Brown 
Craighead  v.  Wilson 
Craigie  v   McArthur 
Craine  v.  McCoy    . 
Crane,  Ex  parte     . 
Crawford  v.  Addison     . 

V.  Points 

V.  The  Wm.  Penn 

V.  White 
Crenshaw,  Ex  parte 
Cropper  v.  Coburn 
Crosby  v.  Buchanan 
Cross  V.  De  Valle  . 
Crouch  V.  Collins  . 
Crowell  V.  Gallagher     . 
V.  Hopkinton   . 
V.  Randall 
Crussell  v.  United  States 
Cucuta  V.  Emerling 
Culbertson  v.  Wabash  N.  Co 
Cummings  v.  The  Akron  C. 

Co 

Cunningham  v.  Olis 
Curtis  V.  The  Cent.  R.  Co 
Cutler  V.   Rae 


PAGE 

248 


121 

56 

244 

266 

herd  121, 

135,  138 

.  500 

.  496 

494,  495,  496 

.  247 

.  157 

.  433 

300,  301 

.  299 

.  247 

62,  72 

.  497 

287,  289 

.  433 


&  P. 


247 
215 
293 
269 
485 
266 
348 
260 
122 

47 
481 
480 
284 


Cutting,  Ex  parte 

Dailey  v.  United  States 
Daily  v.  Doe 
Daniel  v.  Twentyman 
Daniels  v.  Railroad  Co. 

V.  United  States 
Dart  V.  McKinley  . 
Davenport  v.  Dows 

V.  Fletcher 
David  Pratt,  The 

Taylor,  Ex  parte 

V.  Porter     . 
Davis,  The     . 

Ex  parte 

V.  Braden     . 

V.  Child 

V.  Couch 

V.  Grey 

V.  Headley  . 

V.  Packard 

V.  Smith 
Davison  v.  Johnson 
Day  V.  Cbism 

V.  Hayward     . 


247,   250,  299 


.     340 

.       58 

.     124 

253,   254 

.      171 

.     155 

279,  280 

.     257 

86,  87 

.     299 

.     500 

63 

.     309 

1,  172,  254 

58,  60 

268,   289 

14,  116,  489 

497 

98 


497 
238 
286 
142 


TABLE    OF    CASES. 


XI 


Day  V.  Newark  Man.  Co.      128, 

V.  Washburn  . 

V.  Woodward 
De  Arcy  v.  Kotcliun:i 
De  Celis  ik  United  Stales 
De  Greet,  Ex  parte 

V.  United  States 
De  Kraft  v.  Barney 
De  Sobey  v.  Nicholson  . 
De  Wolf  V.  Rabaud 
Dean  v.  Chajjin 

V.  Mason 
Dedekam  v.  Vose  . 
Deitsch  v.  Wiggins 
Deneal  v.  Archer  . 
Deneale  v.  Stump 
Deuham  v.  Railway  Co. 
Dennis  v.  Eddy 

V.  United  States 
Dennistouii  v.  Stewart  170, 
V.  Draper  .  110, 
Derry  v.  Hersey 
Deshler  v.  Dodge  . 
Devereux  v.  Marr  . 
Devlin  v.  United  States 
Dexter  v.  Arnold  . 
Dickersou  v.  Grissom  . 
Diggs  V.  Walcott  . 
Dimick  v.  Brooks 
Dirst  V.  Morris 
Ditson  V.  Ditson  . 
Dixon  V.  Field 
Dock  Bridges,  Ex  parte 
Dodge  t>.  Israel  .  .  214, 
V.  Wolsey  111,  113,  144, 
Doe  V.  Doe     . 

V.  Eslava 
Doherty  v.  United  States 
Doig,  In  re  . 
Dollman  v.  Insurance  Co. 
Donnell  v.  The  Starlight 
Dooley  v.  Smith  . 
Doremas  v.  Bennett 
Dorr,  Ex  parte 
Dorsey  v.  Maury  . 
Dorsheimer  v.  United  States 
Doswell  i>.  De  Lanza  . 
Doughty  V.  Doughty 
Douglas  V.  Pike  . 
Douro,  The  .  ... 
Dow  V.  Johnson  . 
Dowell  V.  Griswold 
Downham  v.  Alexandria 
Draggoo  v.  Graham 
Drawbridge  Co.-  v.  Shepherd 
Dred  Scott  v.  Sanford        113, 

Drew  V.  Judges 

Dromgoole  v.  Farmers'  &  M. 

Drummond  v.  Magruder 


PAGE 

143 

182 

246 

426 

498 

340, 

342 

299 

291, 

344 

113, 

243 

237 

117 

494 

259 

456, 

457 

272, 

275 

241 

257 

194 

456, 

472 

339 

171 

254 

148 

167 

457 

133, 

135 

172 

. 

343 

219 

501 

430 

501 

169, 

260 

500 

300 

425 

215 

481 

405 

433 

495 

269 

340 

310 

267 

78 

269 

114, 

440 

305 

494 

340 

239 

500 

432 

289 

255 

149 

266 

494 

494 

115, 

118, 

137, 

140 

300 

134 

501 

PAGE 

Dubourg  V.  United  States 

216 

Dugan,  Ex  parte    . 

278 

Dun  t).  Clark          .     119, 

120, 

121, 

209 

Dunbar  v.  Hallowell 

498 

Duncan  v.  Durst    . 

185 

V.  Grigan 

166 

V.  United  States 

178, 

186 

Duncommon  v.  Hysinger 

496 

Dunkle  v.  Worcester 

407 

Dupont  V.  Vance   . 

70 

Duponti  V.  Massy  . 

203 

Durant  v.  Washington  Co 

, 

33 

Dureusseau  v.  United  States 

306 

Duval  V.  Fearson  . 

500 

Duygan  v.  United  States 

56 

Dwight  V.  Humphrey     . 

195 

V.  Merritt  . 

176, 

179 

227 

Eads  V.  The  H.  D.  Bacon 

63 

Eager  v.  Stover     . 

498 

Eagle,  The     . 

.   67,  69,  93 

Earley  v.  Rogers    . 

239 

240 

East  Boston  Ferry  Co.  v. 

Boston  . 

300 

Eastern  Star,  The 

. 

65 

Easton,  Ex  parte  . 

293, 

296 

297 

V.  Hodges 

176 

180 

Eaton  V.  Hasty 

, 

501 

Eberley  v.  Moore  . 

llV 

137 

Eddy,  The     . 

59 

Edmonds  v.  Montgomery 

498 

Edmonson  v.  Bloomshire 

275 

Edwards  v.  Bond  . 

471 

V.  Elliott 

58,  59 

266 

Elastic  Fabric  Co.  v.  Smith  . 

247 

Eleanor  Higgins,  In  re 

472 

Elly  Warley,  The  . 

76 

Elmonderf  v.  Taylor 

431 

Ely  V.  Northern  P.  R.  Co. 

159 

V.  Peck  . 

57 

425 

Emerson  v.  Davis  . 

220 

Emily,  The    . 

. 

140 

English  V.  Foxall  . 

194 

Erb  V.  Scott 

496 

Estella,  The 

80 

Evans  v.  Eaton 

403, 

478 

V.  Gee 

135 

V.  Hettick   . 

478, 

481 

V.  Pack 

, 

430 

Ewer  V.  Coffin 

. 

498 

Ewing  V.  Blight     . 

198 

Express  Co.  v.  Kounts  Brothers    . 

137 

Fairfield  v.  Gallatin 

431 

Farey,  In  re  . 

410 

Farlow  v.  Lea 

119 

Farmers'  Co.  v.  Central  R 

Co. 

160 

Farrar  v.  United  States 

123 

Featherman  v.  Louisa  St. 

Sem 

180 

Fellows  V.  Hall 

193, 

200 

Feltus  V.  Starke    . 

. 

. 

499 

Xll 


TABLE    OF   CASES. 


227 


Fcneniore  v.  United  States 
Ferguson  v.  O'llarra 
Ferrell  i'.  Allison 
Ferrens,  In  re 
Feuscher,  Ex  pane  Louis 
Fidelity,  The 
Field  V.  Holland    . 

V.  Lownsdale 

V.  Milton 

V.  Saunderson 
Filer  V.  United  States  . 
Filpin,  Ex  parte    . 
Findlaj  v.  Bank    . 
First  National  Bank  of  Omah 

County  of  Douglas    . 
First  National  Bunk  v.  Kidd 
Fish  V.  Union  P.  R.  Co.      159, 

Fisher  v.  Consequa 
Fitch  V.  McDiarmid 
Flanders  v.  Tweed 
Fleitas  v.  Cockreni 
Fletcher  v.  Morey 

V.  United  States 
Fleeker  v.  United  States 
Florida  v.  Georgia 

V.  Gibbs   . 
Flourenoy  v.  Duke 
Floyd  Acceptances 
Folger  V.  Insurance  Co. 
Foot  V.  Link 
Forbes  v.  Parsons 
Ford  V.  Surget 
Forgaj^  V.  Conrad 
Forsyth  v.  United  States 
Fortitude,  The 
Foster  v.  Glazner 
V.  Goddard 
Fourth  Nat.  Bank  v.  Neyhardt 
Fouvergne  v.  Bryant 

V.  New  Orleans 
Fowle  V.  Alexandria 
Fowler  v.  Lindsey 

V.  Miller    . 
Fox  V.  Ohio 

Francois  Farez,  In  re    . 
Frazier,  In  re 
Free  Trader,  The 
Freeman  v.  Howe 
French,  Ex  parte 
V.  Hay 

V.  Shoemaker  . 
Frewall  v.  Bache 
Friendship,  The    . 
Fritch  V.  Creighton 
Fuller  V.  Clafiin     , 
FuUerton  v.  Bank 

V.  United  States 
Fulson  V.  Marsh    . 
Fulton,  The 


PAGE 

428 

200 

429 

305 

424 

75 

101,  216 

151,  168 

.     428 

.     497 

.     349 

299,  302 

.     131 

1  V. 

.     143 

.     495 

167,  168, 

429,  430 

.     177 

.     300 

.     260 

169,  260 

.      Ill 

.     344 

.     347 

228,  235 

.     301 

.     494 

.      122 

.     499 

.     234 

68 

.     265 

,  250,  251 

.     262 

62 

.  .  500 

.     219 

.      180 

.      148 

.     109 

.     286 

230,  428 

.     231 

125,  264 

310,  411 

310 

463 

121 

302 

430 

7,  428 

481 

64 

110 

247 

179 

178 

142 

78 


206,  24 


th 


11 


Fulton  V.  Gilmore 

V.  McAffee 

Furman  v.  Nichol 

Gaines  v.  Chew     . 

V.  Fuentes  .      11 

V.  Relf 
V.  Traverse 
Gale  V.  Babcock    . 
Gallagher  v.  Roberts 
Galpin  v.  Page 
Galvin  v.  Boutwell 
Gammel  v.  Skinner 
Garden  City  Man.  Co.  v.  Smi 
Gardner  v.  Isaacson 

V.  Sharp  . 
Garland,  Ex  parte 
V.  Davis 
Garneau  v.  Dozier 
Garrett  v.  Woodward 
Garrison  v.  Memphis  Ins.  Co. 
Gass  V.  Stinson 
Gassies  v.  Ballon  . 
Gates  V.  Johnson  . 
Gay  V.  Lloyd 
Gaylords  v.  Kelshaw 
Gazelle,  The 
Gearing  v.  United  States 
Gelpcke  v.  Dubuque 
General  Smith,  The      .         .   58 
Genesee  Chief,  The        .         .   66 
Georgia,  The 

V.  Brailsford 
V.  Grant 
V.  Madrazzo 
V.  O'Grady 
V.  Stanton 
Gerardy  v.  Moore  . 
Germain  v.  Mason 
Gernon  v.  Boecaling 
Gettings  v.  Crawford 
Geyger  v.  Geyger 
Giacomo,  In  re 
Gibbons  v.  Ogden 

V.  United  States 
Gibson  v.  Chauteau 
V.  Chew     . 
V.  Hunter  . 
Gibbs  V.  Uslier, 
Giesler,  Ex  parte  . 
Oilman  v.  Oilman 

V.  Illinois,  etc.,  R.  Co.  1 
V.  Lewis    . 
Givin  V.  Breedlove 
Glass  V.  Sloop  Betsey 
Gleason  v.  Florida 
Glenn  v.  United  States 
Goddard  v.  Ordway 
Gold  W.  &  W.  Co.  V.  Keye 
Golden  v.  Prince  . 


P.tGE 

.  402 
.  270 
.     265 

.     196 

0,  113,  148 

.     Ill 

74,  79,  186 

.     116 

.     238 

.     495 

.     167 

84,  87 

.     166 

.       74 

.     115 

139,  303 

285,   286 

271 

404 


433 
218 
137 
70 
494 
235 
57 
347 
432 

59,  60 

67,  93 

96 

230 

232 

230 

455 

234,   235 

152 

241 

429 

98 

434 

411 

248 

9,  340 
265 
135 
286 
110,  148 
310 
499 

0,  260 
499 
179 
80 
264 
352 
429 
149 
431 


346, 


TABLE    OF    CASES. 


ZIU 


Cxoldsmith,  The     . 

Good  V.  Martin 

Goodrich,  In  re     .         .         .       27, 

V.  Chicago 
Goodwin  v.  Goodwin 
Goodyear  v.  Bourn        .         .     191,  198 

V.  Day  . 

V.  Folsom 

V.  Osgood 

V.  Providence  Rub.  Co 


V.  Union  Rub.  Co 
Goodvear's  Adms.  v.  Toby 
.       1 


112, 
242, 

Ohio 
100, 
122,  128,  177, 

260, 


494 


253, 
339, 


Gordon,  Ex  parte 

V.  Caldcleugh 
V.  Hobart 
V.  Longest 
V.  Ogden 
Gorman  v.  Lenox 
Governor  of  Ky.  v.  Gov.  of 
Grace  Gridler,  The 
Gracie  v.  Palmer 
Graham,  Ex  parte 
V.  Bayne 
V.  Norton 
V.  Stucken 
Gran  Para,  The     . 
Grand  Chute  v.  Winegar 
Grand  Gulf  R.  Co.  v.  Marshall 
Grant  v.  Hamilton 

V.  Henry  Clay  Coal  C 

V.  Poillon    . 

V.  Raymond 

t'.  United  States  . 
Grapeshot,  The 
Gratiot  v.  United  States 
Gray  v.  Blanchard 

V.  Chicago,  etc.,  R.  Co 

V.  Railroad 
Graydon  v.  Sweet 
Grayson  v.  Virginia       .         .     228 
Green  v.  Bishop 

V.  Sarmiento       .      494,  496, 

V.  Taylor 

V.  United  States  .     113, 

V.  Van  Buskirk  .  .  428, 
Gregg  V.  The  Clarissa  Ann 
Gregory  v.  McVeigh  .  .  266, 
Grier  v.  Gregg 
Griffing  v.  Gibb 
Gruner  v.  United  States  .  246, 
Guild  V.  Frontin  .  .  .  169. 
Gupp  V.  Brown 
Gustine  v.  Ringgold 
Guttapercha  Co.  v.  Goodyear 
Gwin  V.  Barton 

V.  Breedlove 

Hackett  v.  Bonnell 
Hadley  v.  San  Francisco 


141, 
1,  293, 


PAGE 
91 

475 
460 
431 
494 
1 

141 
430 
457 
142, 
426 
426 
198 
296 
269 
433 
157 
244 
240 
303 
245 
191 
296 
286 
301 
429 

89 
433 
266 
110 
501 

58 
254 
343 

62 
487 
242 
186 
430 
528 
232 
219 
499 
475 
475 
499 

64 
267 
211 
234 
251 
244 
481 
479 
142 

29 

29 

496 
155 


Co. 


249 


266 


218, 


Hagan  v.  Walker 
Haile  v.  Hill 
Hale  V.  Wash.  Ins 
Hall  V.  Allen 
V.  Gaines 
V.  Jordan 
V.  Laming 
V.  United  States 
Halstead  v.  Lyon 
Hamilton  Co.  v.  Massachusetts 
Hammond  v.  The  Essex  Fire   Ins. 

Co 

Hampton  v.  McConnell 

V.  Rouse 
Hanger  v.  Abbott 
Hankin  v.  Squires 
Hanley  v.  Sharp    .         .         .         . 
Hannaur  v.  Woodruff    . 
Hanrick  v.  Barton 
Hanson  v.  Fowle 
Happet  and  Cargo,  The 
Hardeman  v.  Harris 
Harding  V.  Handy         132,21 
Harness  v.  Green 
Harpending   v.    Reformed    Dutch 
Church       .         .         .         .         . 
Harper  v.  The  New  Brig 
Harris  v.  Barnett 

V.  Wall 
Harrison  v.  Hadley 
V.  Harrison 
V.  Nixon 
V.  Rowan 
Hartshorn  v.  Day 

V.  Wright 
Hartzel  v.  Tilghman 
Harvey  v.  Mid.  R.  Co.   . 
V  United  States 
Harvey's  case 
Hatch  V.  Chicago,  etc 
V.  Dorr 
V.  The  Boston 
Hatcher  v.  Rochelau 
Hauze  v.  Hauze 
Havermeyer  v.  Iowa  Co. 
Havre,  The    . 
Hawthorn  v.  Shepherd 
Hayford  v.  GriflBth 
Haynes  v.  Cowen 
Healy  v.  Root 
Heath  v.  Austin 


PASE 
131 

495 
68 
250 
268 
289 
499 
346 
136 
265 

65 

500 

240 

146 

180 

425 

255 

489 

69 

78 

211 

,  2:!4 

496 


.  494 

91 

.  489 

.   403,  478 

.   118, 136 

.  500 

193,  230,  231,  234 

.  127 

.   141,  426 

.   112 

.   141,  170,  426 

.   116,  157 

341,  344,  345 

.  338 

Co.  166 


R. 


167 
120 
528 
496 
495 
432 
83 
501 
458 
496 
495 
167,  168 


V.  Erie  R.  Co.      .  .  199,  237 

Heathfield  v.  United  States  .  .     343 

Heavey  v.  111.  Mid.  R.  Co.  .  .118 

Heinrich,  In  re      .         .  310,  410,  411 

Helbron, In  re        .         .  .  .     310 

Heminway  v.  Fisher      .  .  .     285 

Henderson  v.  Grigin      .  .  .     431 

V.  Moore       .  .  .239 

i;.  Steinford  .  497,  499 


X17 


TABLE    OF    CASES. 


PAGE 

PAGE 

Henderson  v.  Tennessee 

.     268 

Hussey  v.  Bradley 

456 

Henderson's  Distilled  Spirits 

8 

2,  170 

Huston  V.  Dunn     . 

499 

Hennessy  v.  Sheldon     . 

.     289 

V.  Moore    . 

125 

Henry  v.  United  States 

348 

Hutchins  i'.  Gerrish 

496 

Hensley  v.  Force    . 

500 

Hutchinson  v.  Patrick  . 

501 

Hepburn  v.  Ellzey 

116 

Hyde  v.  Boorman  . 

260 

Herman  v.  Herman 

210 

V.  Ruble 

152 

Herndon  v.  Ridgeway    . 

189 

Hewit  V.  Phelps     . 

152 

lasigi  V.  Brown 

434 

Hibernia,  The 

463 

Illinois,  The 

186 

Higbee  v.  Hopkins 

201 

Inbusch  V.  Farwell 

131, 

440 

Hill  V.  Mendeuhall 

499,  500 

India  Rubber  Co.  v.  Phelps 

211 

Hine,  The       .         .         .      58, 

67, 

78,  93 

Indianapolis,  etc.,  R.  Co.  o. 

Horst 

180 

Hinley  v.  Rose 

289 

&   St.    L.    R. 

Co 

.     V. 

Hiriat  v.  Ballou     . 

179,  248 

Horst    . 

175 

Hobart  v.  Drogan  . 

57 

Inerarity  v.  Byrne 

273, 

428 

Hobson  V.  McArthur 

194 

Ingle  V.  Coolidge  . 

261 

Hodge  V.  Williams 

257 

V.  Jones 

, 

214 

Hodges  V.  Vaugh 

428 

Insurance  Co.  v.  Adams 

191 

Hoffman  v.  Hoffman 

500 

V.  Boykin 

283 

Hogan  V.  Ross 

429 

V.  Comstock 

240, 

300 

Hoge  V.  Railway  Co. 

279 

V.  Dunham 

255 

V.  Williams 

257 

V.  Dunn 

.55 

157 

167 

Holcomb  V.  McKusick  . 

239 

V.  Folson 

260 

Holliday  v.  Boston 

257 

V.  Francis 

138 

Hollingsworth  v.  Adams 

177 

V.  Hendren 

267 

Holmes  v.  Trout    . 

197,  428 

V.  Pechner 

156 

Home  Ins.  Co.  v.  City  Council 

266 

V.  Piaggio 

285 

V.  Mullen     . 

208 

V.  Ritchie 

113, 

138 

Hood  V.  Hood 

500 

V.  Tweed 

170, 

260 

Hook  V.  Payne 

206 

V.  United  States 

139 

Horn  V.  Lockhart         117,  121 

132,  268 

Irons  V.  Manufacturers'  Bank 

143 

144 

Horner  v.  Spilman 

295 

Irvine  v.  Lowry     , 

134 

Hornet,  The 

83 

Isabella,  The 

57 

Hornthall  v.  The  Collector   . 

117,  137 

Island  City,  The    . 

. 

65 

Horton  v.  Critchfield 

498 

Hotel  Co.  V.  Wade 

119 

Jackson  v.  Ashton 

235, 

289 

Hough  V.  Railway 

432 

V.  Rose     . 

57, 

425 

Howe  V.  Freeman 

182,  183 

V.  Simonton     . 

29 

Howe  Machine  Co.  w  Edwards 

179,  180 

V.  Steamboat  Magnolia    . 

92 

Howell  V.  United  States 

352 

V.  Twentyman 

137 

Hoxie  V.  Carr 

205 

Jacques  v.  Collins 

433, 

434 

Hoyt  V.  Hammakin 

481,  487 

Jacquette  v.  Hugunon  . 

500 

Hubbard  v.  Northern  R.  Co. 

113, 136 

James  v.  Jenkins  . 

177 

Huber  v.  Reiley     . 

425 

Jameson  v.  Willis 

404 

Hudnal  v.  United  States 

347 

Jansen  v.  The  Magdalena 

57 

Hudson  V.  Dailey  . 

500 

Jardine  v.  Richert 

498 

Huger  V.  South  Carolina 

228 

Jecker  v.  Montgomery  . 

82 

236, 

256 

Hughes  V.  Blake    . 

201 

Jefferson  Bank  v.  Skelly 

. 

113 

V.  Davis    . 

500 

Jenkins  v.  Banning 

, 

289 

V.  United  States 

238 

V.  Carson 

ro,  78,  80 

Humiston  v.  Stanthorp 

250 

V.  Eldridge        .     210, 

218, 

220 

Humphreys,  Ex  parte    . 

408 

V.  United  States 

348 

Hungerford  v.  Sigerson 

433 

Jennison  v.  Leonard 

170, 

260 

Hunt  V.  Hunt 

500 

Jones  V.  Andrews  . 

120, 

192 

V.  Louis         .         .         . 

200 

V.  Hayes 

494 

Hunter  v.  Marlbro' 

220 

V.  League    . 

236 

Huntingdon  v.  Texas     . 

268 

V.  McMasters 

124 

Hurst  V.  McNeill 

405 

V.  Morehead 

259 

V.  W.  &  N.  R.  Co. 

158 

V.  Ocean  Steam  Nav. 

Co 

160 

TABLE    OF   CASES. 


XY 


Jones  V.  Oregon  Cent.  R.  Co 
V.  Schell      . 
V.  Spencer  . 
V.  United  States 
V.  Van  Zant 
V.  Warner    . 
Jerusalem,  The 
Jesse  Hoyt,  Ex  parte 
Jetter  v.  Hewitt     . 
Jewett  V.  Hone 
John  and  Alice,  The 
John  Griffin,  The  . 
Johnson  v.  Dobbins 

V.  Donaldson 

V.  Healey 

V.  Jamel  . 

V.  The  Coriolanus 

V.  United  States 
Jordan,  Ex  parte   . 
Jose  Ferreirados,  In  re 
Joseph  Bradley,  Ex  parte 
Joseph  Stupp,  In  re 
Joy  V.  Wirtz 
Judson,  Ex  parte  . 

In  re 

V.  Macon  Co. 
Juneau  Bank  v.  McSpedden 


PAGE 

481 
458 
499 
345 
253 
498 
62 
302 
431 
432 
62 
503 
497 
476 

176,  179 
165 
490 

308,  342 
246 
411 
299 

310,  411 

205,  208 
408 
405 
112 
129 


Kaeiser  v.  III.  Cent.  R.  Co.    .         .156 
Kain  v.  Texas  P.  R.  Co.         .         .     159 
Kaine,  Ex  parte     .         .     307,  309,  310 
In  re  ...     410,  411 

Kanouse  v.  Martin  .  .  112,  167 
Kean  v.  Rice  ....     494 

Kearney,  Ex  parte         .         .     306,  308 
Keary  v.  Farmers'  Bank         .         .     134 
Keene  v.  Meade      .         .         .         .481 
V.  United  States  .         .       80 

Kellum  V.  Emerson  ...  58 
Kelsey  v.  Forsyth  .         .         .     244 

V.  Pennsylvania  R.  Co.  122,  137 
Kendigw.  Dean  .  .  232,  208,  441 
Kennebeck    Railroad  v.  Portland 

Railroad    .....     266 
Kennedy  w.  Bank         170,172,191,210, 

254 

V.  Gibson         .         .         .     143 

Kentucky  v.  Dennison  ...         7 

Kerr  v.  Kerr 498 

V.  Watts  .  .  .  .206 
Ketchum  v.  Farmers',  etc.,  Co.  .  114 
Ketland  v.  Bissett  .         .         .     214 

Ketridge  w.  Race  .  .  .  .211 
Key  V.  Vaughn  ....  501 
Kidd  V.  Manley  ....  501 
Kilburn  v.  State  Sav.  Inst.  .  .  289 
Killam  v.  Toms  .....  496 
Kimbal  v.  Merrick  .         .         .     499 

V.  Mobile  .         .         .     431,  433 
King  V.  Dale  .         .         .         .501 


King  V.  United  States 

V.  Wilson 

V.  Worthington 
Kingman  v.  Cowles 
Kingsbury  v.  Yniestra 
Kinney,  Ex  parte  . 
Kinnier  v.  Kinnier 
Kirkman  v.  Hamilton 
V.  Hendrick 
Kirtland  ?>.  Hotchkiss 
Kitchen  v.  Woodfin 
Klinger  v.  Missouri 
Knapp  V.  Banks     . 
Knode  v.  Williamson 
Knote  V.  United  States 
Knowles  v.  Gas  L.  Co. 
Knox  V.  Summers 
Kohl  V.  United  States 
Koning  v.  Bayard 
Kramme  v.  The  New  England 
Kuhn  V.  McMillen 
Kynoch  v.  Ives 

Lackland  v.  Pritchett    . 
Lady  Horatio,  The 
Lafayette  Ins.  Co.  v.  French 
Lamb  v.  Briard 
Landsberg,  In  re   . 
Langdon  Cheeves,  The 
Lange  v.  Benedict 


Ex  parte 


343, 


25 


49 


Langford  v.  United  States 
L'Arina  v.  Brig  Exchange 
Latham  v.  Almy    . 
Latham's  Appeal  . 
Latimer  v.  Union  Pac.  R.  Co 
Latteratt  v.  Cook  . 
Lawrence  v.  Jarvis 
V.  Pool . 
Laylor  v.  Kilgore  . 
Leavenworth  v.  Barnes 
Leavy  v.  Seymour 
Lee,  Ex  parte 

V.  Hamilton 

V.  Lee     . 

V.  Rogers 

V.  Watson 
Leeds  v.  Marine  Ins.  Co. 
Legal  Tender  Cases 
Legee  v.  Thomas  . 
Leiper  v.  Bickley  . 
Leland  v.  Wilkinson 
Lenox  v.  Front 
Leon  V.  Galcerean 
Lessee  of  Nelson  v.  Moon 
Lessieur  v.  Price  . 
Levy  V.  Burley 

V.  Fitzpatrick 
Levy  Court  v.  Ringgold 
Lewis  V.  The  Elizabeth  and  Jane 


PAGE 

458 

112 

157 

494 

498 

307 

500 

135 

498 

150 

466 

266 

244 

481 

342,  343 

.     498 

191,   234 

109,   110 

183,   186 

71 

498 

64 

501 
61 

499 

490 

527,  528 

64 

265 

165,  305,  309 


178, 


7, 


344 

65 

426 

292 

494 

500 

238 

496 

431 

311 

460 

495 

245 

432 

242 

201 

269 

208 

404 

1,   254 

201 

78 

192 

270 

490 

127,  128,  177,  182 

34 

65 


113 


11 


17 


XVI 


TABLE    OF    CASES. 


299. 


Lewis  V.  Wilder     . 

Life  Ins.  Co.  v.  Wilson 

Life  &  Fire  Ins.  Co.  v.  Adams 

Lilley  v.  United  States 

Lincoln  v.  Tower  . 

Lindsey  v.  United  States 

Little  V.  Alison 

Littlefield  v.  Perry 

Liverjiool  Ins.  Co.  v.  Massachusett 

Livingston  v.  JeflPerson 

V.  Moore 

V.  Story 
Livingstone  v.  Dorgenois 
Lloyd  V.  Fulton     . 
Locke  V.  United  States 
Lockhart  v.  Horn  . 
Logan  V.  Patrick  . 

V.  The  Eolian 
Lombard  v.  Bayard 
Long  V.  Converse 
Lorin,  Ex  parte     . 
Loring,  Ex  parte  . 
Lorman  v.  Clark   . 
Lorway  v.  Lousada 
Lotbop  V.  Blake     . 
Lottawanna,  The  . 
Louis  Feuscher,  Ex  parte 
Louisville  R.  Co.  v.  Setson 


Louisville,  etc.,  R.  Co.  v.  Gaines 
Lowe  V.  Lowe 

V.  Williams  . 
Lower  v.  United  States 
Lucas  V.  Bank 

V.  Brooks    , 
Lucille,  The 

Luckenbach  v.  Anderson 
Lucy,  The 
Lulee,  The    . 
Luminary,  The 
Luth  V.  Luth 
Luther  v.  Borden  . 
Lyell  V.  Miller 
Lyon  V.  Lyon 


PAGE 

500 
301 
300 
344 
498 
349 
496 
142 
138 
111 
114 

111,  199,  237 
300 
431 
503 
528 
120 
66 
183 
268 
299 
299,  302 
110 
97 
494 
59,  99 
424 
135 
432 
498 
155 
300 
499 
475 
250 
497 

244,  246,  251 


58, 


12 


248 


Macauley  v.  United  States     . 
Macdonnell,  In  re 
Macomber  v.  Clarke 
Magee  v.  Union  Pac.  R.  Co. . 
Maggie  Hammond,  The  .  59, 

Maguire  v.  Card  . 
Main  v.  Second  Nat.  Bank  of  Chi- 
cago ....  143,  175,  179 
Mallow  V.  Hinde  .  .  132,  204,  440 
Malone  v.  United  States  .  .  352 
Mankin  v.  Chandler  ...  73 
Mann  v.  Richardson  .  .  .  236 
Manor  v.  McCall  .  .  .  .300 
Manro  v.  Almeida  .   70,  73,  88,  182 

Manufacturers'  Bank,  In  re  .         .     143 
Manufacturing  Co.  v.  Brack  .     138 


62 
503 
500 
171 
456 
500 

345 
310 
434 
160 

61,  82 
67 


Many,  Ex  parte 
Marbury  v.  Madison 
Marengo,  The 
Margaret,  The 
Marin  v.  Lalley 
Marine  Ins.  Co.  v.  Hodson 
Marion,  The  . 
Marqueze  v.  Bloom 
Marsh  v.  Bennett  . 


247, 


209, 


Marshall  w.  Baltimore,  etc.,  R.  Co. 


V.  Bazin 
V.  Beverly 
V.  Vicksburg 
Martin  v.  Criscuola 

V.  Hunter 
Marx  V.  Fore 
Mary  Anne,  The 
Mason  v.  Gamble 

V.  Haile 

V.  Laurason 

V.  Rollins    . 
Massachusetts  v.  Rhode 
Massingill  v.  Downs 
Masterson  v.  Herndon 
Maston  v.  McRea  . 
Matthews  v.  McStea 
V.  Roberts 
Mattoon  v.  Clapp  . 
Maudeville  v.  Riggs 
Mauldin  v.  Carroll 
Maxwell  v.  Newbold 
V.  Stewart 
May,  In  re     . 

V.  Leclare 
Maye  v.  Carberry 
Mayhew  v.  Thatcher 
Mayor  v.  Rainwater 
McArthur  v.  Goddin 
V.  Porter 
McCardle,  Ex  parte 
McCargo  v.  Chapman 
McClurg  V.  Kingsland 
McCoUough  V.  Sch.  Fu 
McCollum  V.  Eager 
McComb  V.  Commissioners 
McCormic  v.  Deaver 

V.  Sullivant 
McDearmid  v.  Fitch 
McDermott  v.  Clary 
McDonald  v.  Smalley 
McDonnell,  In  re  . 
McElmoj'le  v.  Cohen 
McElrath  v.  United  States 
McFarlan  v.  Harrington 
McFarland  v.  White 
McGarrahan  v.  Mining  Co. 
McGinnis  v.  Pontiac 
McGinnithy  v.  White     . 
McGlinchy  v.  United  States 


.     176, 
3,  116,425, 


11 


Island 


182 


499, 


307, 


niture  Co 


410, 
496, 


527, 


PAGE 

302 

7,8 
64 
78 
250 
239 
61 
265 
429 
121, 
135 
75 
205 
198 
179 
495 
498 
82 
258 
182 
494 
137 
232 
183 
240 
405 
266 
236 
496 
206 
129 
266 
500 
435 
433 
434 
499 
300 
497 
286 
311 
239 
142 
155 
247 
268 
495 
117 
300 
498 
137 
411 
498 
350 
494 
496 
489 
62 
112 
528 


TABLE    OP    CASES. 


XVll 


PAGE 

PAGE 

McGrath  v.  Candalero  . 

73 

Mitzger,  Ex  parte 

307 

McGuire  v.  Commoawealth 

266 

Moffat  V.  Soley 

133 

Mclver  v.  Wattles 

289 

Molan  V.  Torrance       117, 

121, 

135, 

287 

McJilton  V.  Love   . 

497 

Montalet  v.  Murray 

124 

McKeever  v.  United  States 

344 

Montgomery  v.  Anderson 

145, 

247, 

249 

McKinlay  v.  Morrisli 

71 

V.  Hernandez    30, 

269, 

270 

McKinney  v.  Carroll 

269 

Moore  v.  Huntington 

206 

McKuight  V.  United  States 

345 

V.  Mississippi 

266 

McLaurens  v.  Monroe    . 

498 

V.  Nelson 

404 

McLean  v.  Lafayette  Bank     . 

189, 

196 

V.  Robbins  . 

250 

V.  Winchester 

494 

V.  State  of  Illinois 

125 

In  re 

460 

V.  United  Stales 

341, 

342, 

348 

McLure  v.  Bencene 

496 

Mordecai  v.  Lindsay 

145 

McMicken  v.  Perin 

248 

Morewood  v.  Enequist. 

57 

McMuUin  v.  State 

300 

Morgan  v.  Beloit   . 

433 

McNiel  V.  Holbrook 

494 

V.  Curtenius 

278, 

428 

McNulty  V.  Batty  . 

262 

V.  Morgan 

120 

McNutt  V.  Bland    . 

118 

V.  Thomhill 

. 

250 

V.  United  States 

292 

Morrell  v.  United  States 

341 

McVicker  v.  Beedy 

499 

Morris'  Cotton 

81, 

139 

Mead  v.  Thompson 

250 

Moses  Taylor,  The 

j7,  67,  93 

Mechanics'  Bank  v.  Setons  2 

05, 208 

,481 

Mossman  v.  Higginson 

124 

Medbury  v.  State  . 

269 

Moulin  V.  Insurance  Co. 

. 

498 

Medora,  The 

90 

Moutin  V.  Insurance  Co. 

501 

Meek  v.  Meek 

498 

Mowrey  v.  Ind.  &  C.  R.  C 

0.    . 

429 

Meister  v.  Moore    . 

431 

Mrs.  Alexander's  Cotton 

81 

,  82 

Melhop  V.  Doane   , 

499 

M.  R.  Tel.  Co.  V.  First  Na 

t.  Bank 

57 

Melvin  v.  Lyons     . 

495 

Mudd  V.  Beauchamp 

495 

Mercer  Co.  v.  Racket    . 

136 

MuUer  v.  Dows 

122 

Merchants'  &  Mechanics'  N. 

Bank 

Mumm  V.  Owens   . 

475 

V.  Wheeler 

155 

Munns  v.  Dupont  . 

481 

Merill  v.  Dawson  . 

406, 

481 

Murdock  v.  City  of  Memphis 

266, 

269 

V.  Petty       .         .11 

2,   246, 

451 

Murphy  v.  United  States 

352 

Merino,  The  . 

82, 

140 

Mussina  v.  Cavazos 

240 

Mesa  V.  United  States   . 

276 

Myra  Clark  Whitney,  Ex 

parte     . 

299 

Messenger  v.  Mason 

266 

Mewster  D.  Spaulding    .     11 

0,  194, 

195 

Nabor,  Ex  parte     . 

300 

Meyer  v.  Del.  R.  C.  Co. 

155 

Narragansett,  The 

68 

Mezeix  v.  United  States 

348 

Nathaniel  Hoper,  The 

77 

Michoud  V.  Girod 

247, 

251 

National  Bank  v.  Carpenter  . 

200 

Middlesex  Bank  v.  Butman 

498 

V.  Colby 

143 

Middleworth  v.  McDowell 

500 

Nations  v.  Johnson 

499 

Miller  v.  Insurance  Co. 

260 

Nazro  v.  Cragin     . 

180 

189 

V.  Joseph     . 

267 

Neale  v.  Neale 

198 

V.  Nichols    . 

261 

Nefif  V.  Pennoyer  . 

178 

186 

456 

V.  Pennington     . 

500 

Neilson  v.  Layow  . 

123 

270 

V.  State 

279 

Nelson  v.  Hill 

. 

196 

V.  United  States 

86 

V.  Justices 

301 

Milligan,  Ex  parte 

307, 

308 

V.  Leland   . 

92 

V.  Millege 

206 

Nesmith  v.  Shelden 

171 

253, 

254 

Mills  V.  Brown 

244, 

269 

Nestor,  The  . 

61,  62 

V.  Dnryee 

496, 

500 

Neustra,  The 

99 

100, 

256 

Milne  v.  Van  Buskirk    . 

499 

Neversink,  The 

62 

Milwaukee  R.  Co.,  Ex  parte 

299 

New  England,  The 

89 

Mining  Co.  v.  Bullion  Minin 

gCo! 

149 

New  Jersey  v.  New  York 

229 

232, 

233 

Minnesota  Co.  v.  St.  Paul  C 

3.   120, 

121 

Steam  Nav.  C 

o.v.  Mer- 

Mississippi  v.  Johnson  . 

232, 

235 

chants'  Bank  . 

66 

Missouri   River   Tel.  Co.  v. 

First 

New  Orleans  v.  Gaines 

219 

Nat.  Bank 

425 

V.  Morris 

183 

Mitchell  V.  Burlington  . 

432 

V.  Winter 

. 

116 

xviii 


TABLE   OF   CASES. 


PAGE 
69 

429 

268 

180 

84 


New  World,  The,  v.  King 
New  York  v.  Connecticut      .      229 
Life  Ins.  Co.  v.  Hindren 
Newcomb  v.  Wood 
Newell  V.  Norton   .... 
Newman,  Ex  parte         .         .      299,  300 
V.  Goza  .  .  .     496 

Newton  v.  Mutual  Benefit  Life  Ins. 

Co 496 

Nicholas  v.  Nicholas      .         .         .     500 

Nichols  V.  Levy      .         .         ,         .431 

V.  United  States        .      340,  342 

V.  White   .         .         .         .481 

Nicholson  Pav.  Co.  v.  Mayor  .     301 

Nickols  V.  Brunswick    .         .         .     472 

Nonsuch,  The         .         .         .      244,  246 

Norris  «.  Crocker  .         .         .113 

V.  Jackson  .         .         .     260 

North  Carolina  v.  Dewey       .         .116 

Northern  Ind.  R.  Co.  v.  Mich.  Cent. 

R.  Co 137,  441 

Northern  Railroad  v.  The  People  265 
Norton  v.  Rich  ....  99 
Norwich  v.  Wright         .         .  92,  93 

Norwood  V.  Cobb  .         .         .     498 

Nourse  v.  Allen  ....  196 
Nudd  V.  Burrows  .         .         .,    175,180 

Oats  V.  National  Bank  .         .         .     432 

Ober  V.  Gallagher  .         ,         .     130 

O'Brien  v.  Brown  .         .         .     120 

V.  Weld     .  .  .  .267 

Ocean  Ins.  Co.  v.  Fields         .      199,  234 

Ocean  Queen,  The  ...       96 

O'Doud  V.  Russell  .         .         .240 

Oelrichs  v.  Spain  .         .         .     433 

Ogle  V.  Lee  .         .       141,  172,  254 

O'Hara  v.  MacConnell   .         .         .193 

Ohio  L.  and  F.  Co.  w.  Debold         .     114 

and  Miss.  R.  Co.  v.  Wheeler     121 

Trust  Co.  V.  Debolt       .         .     432 

O'Keefe  v.  United  States        .         .     348 

Olcott  V.  Supervisors     .         .         .     432 

Oldens  V.  Hallett  .         .         .     496 

Oliver  v.  Alexander       .         .      295,  401 

V.  Pratt        .  .  .      196,  218 

Ordway  v.  Central  Nat.  Bank       57,  425 

V.  Conroe  .         .      494,  496 

O'Riley  v.  Morse  .         .      142,  426 

Orleans  v.  Pha-bus         .         .         .431 

Orne  v.  Townsend  ...       70 

Osborn  t).  Bank     .         .      113,116,132, 

149,  230 
V.  Mich.  A.  L.  R.  Co.         .     120 
Osborne  v.  Mobile  .         .         .     266 

V.  President,      Directors, 

etc 201 

V.  United  States       .         .       81 

Osgood  V.  Chicago,  etc.,  R.  Co.   143,  167 

V.  Chicago,  D.  &  V.  R.  Co.     156 


Owing  V.  Hull 

PAGE 

.     494 

Owings  V.  Kincannon    . 
V.  Norwood 
V.  Speed    . 

.     257 

.      113,  270 

.     269 

ns.  Co. 


266, 


Paca  V.  Dutton  ....  501 
Pacific  R.  Co.  V.  Ketchum  116,  117,  133, 
143,  247,  277 
Packer  D.  Nixon  .  .  .  172,  254 
Packet  Co.  v.  Clough 
Packet,  The  . 
Paine  v.  Schenectady  I 

V.  Wright    . 
Palmer  v.  Call 

V.  Marston 
Palte  V.  Derby 
Panama,  The 
Parcels  v.  Johnson 
Parish  v.  Ellis 
Parker  v.  Bigler    . 

V.  Cartzler 

V.  Hotchkiss 

V.  Judges   . 

V.  Williams 
Parkhurst  v.  Kinsman 
Parkman  v.  Overman 
Parks,  Ex  parte     . 
Parson  v.  Hunter  . 
Parsons  v.  Howard 

V.  Lyman 
Partington,  Ex  parte 
Paschal,  In  re 
Patapsco  Guano  Co 


475 

62 

497 

431 

155 

268 

.'  426 

91 

.  249,  268 

.  249 

.  463 

.  472 

.  129 

.  430 

.  494 

.  210 

110,  137,  148 

.  165,  308 

.  528 

.  441 

.  Ill 

.  309 

.  436 

Morrison  .     431 


Ins.  Co.  V.  Southgate  403,  406, 

407,  478 

Patapsco,  The        .         .         .60,  61,  62 

Patrick  v.  Gibbs    ....     495 

Patterson  v.  Boon  Co.   .         .         .     149 

V.  McLaughlin       .         .     429 

V.  State      .    .         .         .     497 

V.  United  States    .     349,  428 

V.  Winn  .         .         .     178 

Payne  v.  Hook       .         .         .     Ill,   142 

Payton  v.  Bliss      ....     164 

V.  Robertson      .         .         .     112 

Pearce  v.  Olney     ....     497 

Peaslee  v.  Haberstro      .         .         .     227 

Peck,  Ex  parte      ....     408 

I'.  Sanderson        .         .         .     265 

Peet  V.  McGraw     .         .         .         .240 

Pelton  V.  Platner  .         ,         ,     494,  499 

Pendleton  v.  Evans        .         .     192,  216 

Penhallow  v.  Doan        .         .       80,  429 

Penn  v.  Quicksilver  Co.     138,  229,  230, 

244,  349 
Pennell  v.  Wyant  ....  501 
Pennoyer  v.  Neif  ....  495 
Pennsylvania  v.  Wheeling  Br.  Co.    Ill, 

185 
Penywit  v.  Eaton  .         .         .         .289 


TABLE   OF   CASES. 


ZIZ 


People  V.  Baker     . 

V.  Board  of  Police 

V.  Darwell 

V.  Easton   . 

V.  Green     . 

V.  Head 

V.  Hilliard 

V.  Judge,  etc.     . 

V.  Loucks  . 

V.  Pearsons 

V.  Smith     . 

V.  Supervisors    . 

V.  Thompson 
People's  Ferry  Co.  v.  Beers 
Pepin  V.  Lachenmejer  . 
Pepper  v.  Dunlap . 
Perkins  v.  City  of  Watertown 

V.  Hart 

V.  United  States 
Perrin  v.  United  States 
Perry  v.  Corning  . 
Perseverance,  The 
Peters  v.  Prevost  . 
Peterson  v.  United  States 
Petigrew  v.  United  States 
Pettibone  v.  Derringer  , 
Peyton  v.  Howard 

V.  Robertson 
Pharo  V.  Smith 
Phebe,  The   . 
Phelps  V.  Holker  . 
Philadelphia,  etc.,  R.  Co.  v. 

son 

Philadelphia  v.  The  Collector 

Philip  Henrich,  In  re    . 

Phillip  V.  Nock 

Phillips  V.  Moone  . 

Pickett  V.  Bates    . 

Picquet  v.  Swan    .       129,  1 

Pierce  v.  West 

Pine  Grove  v.  Talcott   . 

Pioneer,  The 

Piquignot  v.  Penn.  R.  Co. 

Pitcher  v.  United  States 

Pitman,  In  re 

Pittilon  V.  Noble  . 

Pittman  v.  Hooper 

Piatt's  Appeal 

Pleasants,  Ex  parte 

Plitt,  Ex  parte 

Plummer  v.  Conn.  Mut.  Ins. 

Plymouth,  The      . 

Pollard,  The 

V.  Baldwin 

V.  Dwight 

V.  Pickett 
Pomeroy  v.  Main  . 

V.  N.  Y.  &  N.  H.  R 
State  Bank 


PAGE 

.  500 
.  300 
.  500 
.  301 
.  301 
.  301 
.  301 
.  300 
.  301 
.  301 
.  500  , 
.     301  j 

300,  301 

58 

.     496 

.     249 

176,  179 
.      172 

527, 


Porcheller  v.  Bronson  . 
Porter  v.  Foley 

V.  Harris     . 
Portland  v.  United  States     . 
Postmaster-General  v.  Cross 
V.  Early 
Potter  V.  Gardner 

V.  Muler 

V.  Wilson    . 
Poultney,  Ex  parte 

V.  La  Fayette 


272, 


528 
339 
194 

64 
479 
286 
259 
407 

66 
244 

84 
463 
499 

221 

138 

248 

258 

259 

495 

181, 189 

197,   212 

.     432 


Stim- 
184, 


79. 


143. 


85 

124 

342 

435 

152 

65 

600 

435 

460 

433 

69 

.     475 

.     498 

117,   234 

.      122 

.     185 

Co.  .     143 

178,  240 


Co. 


Pond  V.  Vermont  Valley  R.  Co.    .     131 


PASS 

496 

257 

301 

340 

112 

123 

206,  207,  208 

.     142 

.     142 

.     300 

111,  184,  188, 

201,  221 

.     501 

113,   243 

.     496 

.     289 

.      115 

116,  124 

.     260 

.     460 

.     499 

498,   500 


Powell  V.  Knox 
Pratt  V.  Fitzhugh 

V.  King 
Prentice  v.  Pickersgill  . 
Prentiss  v.  Barton 
V.  Brennan 
V.  Zane    . 
Prescott,  The 
Price  V.  Hekok 

V.  Ward 
Prigg  V.  Commonwealth 

V.  Pennsylvania  . 
Prime  v.  United  States 
Propeller  Commerce,  The 
Protector,  The       .         .      246,  251 
Providence  Bank  v.  Billings 
Provine  v.  United  States 
Pryor  v.  Moore      .... 
Public  Schools  v.  Walker     . 
Public  Works  v.  Columbia  Col. 

Pueblo  Case,  The 

Pugh  V.  United  States  . 

Pullian  V.  Christian 

Pulte  V.  Derby       .... 


270 

125 

352 

92 

,  257 
150 
349 
498 
290 

496, 
497 
33 
349 
248 
141 


Railroad  Co.  Ex  parte  .     177, 
246, 
V.  Ailing  . 
V.  Clinton  Co.  . 
V.  Harris  .       116, 
V.  Maryland 
V.  McMinley   155, 
V.  Kountz 
V.  Pollard 
V.  Swasey 
V.  Whitton      57, 


V.  Wiswell 
Railway  Co.,  Ex  parte 
V.  Ramsey 

Raines  v.  United  States 
Raleau  v.  Barnard 
Rambler,  The 
Ramsey  v.  Allege 

V.  United  States 
Randall  v.  Phillips 


128 
156, 


182,  189, 

249,  302 

.     302 

.     301 

121,  135 

.     266 

,  158,  167 

.     157 

.     475 

.     248 

110,  121, 

135 

240,  300 

248,  303 

166,  231, 

244 

349 

124 

84 

60 

341 

201 


XX 


TABLE   OF   CASES. 


PAGE 

PAQE 

Randolph ,  Ex  parte 

309, 

487 

Rodd  V.  Heartt 

242, 

245 

V.  Kesler 

495 

Rogers  v.  Burlington    . 

240 

Rangley  v.  Webster 

. 

498 

V.  Guinn     . 

. 

497 

Ranson,  Ex  parte  . 

, 

303 

V.  Law 

. 

252 

Rapahoe  Co.  v.  Kansas,  etc., 

118 

Roman  v.  United  States 

345 

Raymond  v.  United  States 

, 

528 

Root  V.  Root 

500 

Read  v.  Consequa 

, 

210 

Rosenbach  v.  Dreyfuss  . 

179, 

180 

Reading  i'.  Cummlngs  . 

. 

300 

Ross  V.  Carpenter . 

198 

Reber  v.  Wright    . 

, 

495, 

498 

V.  Duval 

182, 

235 

Rector  v.  Ashley  . 

265, 

269, 

270 

V.  Georgia 

425 

Reed,  Ex  parte 

308 

Rowland  v.  Jarvis 

, 

497 

V.  House 

183 

Rowley  v.  Williams 

, 

238 

V.  Hussey     . 

. 

73 

Ruggles  V.  Simonton     , 

. 

430 

Reg.  V.  Chichester 

298 

Rumbold  v.  Forteath     . 

, 

237 

Reichart  i'.  Felps 

, 

, 

270 

Rush  V.  Parker 

244 

Reid  V.  Boyd 

, 

, 

498 

Russell  V.  Ashley 

30 

178 

RelUy  t'.  Goldlng 

. 

120 

V.  Clarke 

132 

Removal  cases       .      115, 

147, 

151, 

155, 

V.  Elliott 

. 

301 

156, 

157 

277 

V.  Kearney 

495 

Republic  Ins.  Co.  v.  Williams 

175, 

V.  McLean        178, 

186 

221 

478 

179 

180 

V.  Thomas 

, 

428 

Revenue  Cutter,  The     . 

58 

Russia,  The 

. 

463 

Reynolds  v.  United  States 

449 

Ryan  v.  Bindley    . 

. 

243 

Rhoades  v.  Silin         214, 

215, 

406, 

479, 
481 

Sackett  v.  Davis    . 

136 

Rhode  Island  v.  Massachusetts 

. 

185, 

Sadler  v.  Hoover  . 

171 

199 

229 

285 

V.  Hudson  . 

129, 

182 

Ribon  V.  Railroad  Co.  . 

205 

441 

Sadley  v.  Hover    . 

253 

Rice  V.  Huston 

119 

215 

Sage  V.  Railroad  .       247, 

249 

251 

407 

Richard  Busteed,  The   . 

59 

V.  Tanszky    . 

180 

Richardson  v.  Golden   . 

214 

480 

Sail  V.  Cent.  R.  Co. 

, 

246 

Richmond  v.  Milwaukee 

245 

Saltmash  v.  Tuthill 

429 

etc.,  R.  Co.  V. 

Railroad 

Sampson  v.  Welch 

244, 

246, 

251 

Co.    . 

, 

267 

Samuel,  The            82,  96, 

403, 

407, 

481 

V.  Smith 

431 

Samuel  Strong,  The 

. 

59 

Ricketts  v.  Henderson  . 

, 

499 

San  Jago,  The 

, 

140 

Riggs  V.  Johnson  Co.    . 

183 

,  301 

Sandwich,  The 

62 

Rio  Grande,  The   . 

428 

Sanford  v.  Portsmouth 

3 

175 

Rison  V.  Cribbs 

, 

113 

V.  United  States 

339 

Ritchie  v.  Manro   . 

. 

243 

Sarah,  The    .         .80 

81, 

139, 

296 

Roach  V.  Chapman 

58 

Sargeant  v.  Biddle 

481 

V.  Hulings 

195 

,  230 

Saule  V.  United  States 

487 

Robbing,  Ex  parte 

35 

Saulet  V.  Shepherd 

169 

Robert  v.  Hodges 

496 

Saunders  v.  Gould 

172, 

253, 

254 

Robert  Fulton,  The 

57,  60 

Sawin  v.  Kenny     . 

179 

Roberts,  Ex  parte 

292 

Sawyer  v.  Oakman 

73, 

402 

V.  Bolles 

432 

Schacker  v.  Hart.  Fire  In 

3.  Co 

242 

V.  Dallas 

, 

6 

Schlesinger  v.  United  States 

, 

342 

V.  United  States 

. 

344 

Schollenberger,  Ex  parte 

, 

, 

122 

Robertson  v.  Barbour    . 

, 

495 

School  Ins.  V.  People    . 

, 

, 

300 

V.  Carson      . 

. 

132 

Schooner  Marion,  The  . 

, 

6 

V.  Cease 

. 

137 

Schoonmaker  v.  Lloyd 

, 

497 

Robins  v.  Ward     . 

499 

Schuchardt  v.  The  Anglique 

90 

Robinson,  Ex  parte 

248 

,  303 

,435 

Schwabacker  v.  Reilly  3C 

,71, 

177, 

179 

In  re      . 

436 

Schwaub,  Ex  parte 

299, 

303 

V.  Campbell  . 

111 

,  185 

Scott  V.  Allen 

, 

30 

V.  Insurance  C 

0.    . 

. 

180 

V.  Cleveland 

. 

495 

V.  Payton 

, 

498 

V.  Jones 

266, 

269 

V.  Satterlee  . 

, 

212 

Seaborn  v.  Henry 

495 

Eockhold  V.  Rockhold  . 

. 

267 

Searle  v.  Railroad 

. 

430 

TABLE    or    CASES. 


XXI 


PAGE 

133 

431 

303 

300 

145 

191 

61 

136 

178 

135 

116 

270 

266 

114 

244,   261 

347 

91 

132 

250 

431 

135 

137 

34 

57,  89 

.     429 

.      137 

.     489 


118, 
118, 


Seckel  v.  Backhaus 
Secomb  v.  Railroad 
Secombe,  Ex  parte 
Secretary  v.  McGarraghaa 
Sedwick  v.  Fridenburgh 
Segee  v.  Thomas   . 
Seldon  v.  Heudrickson 

V.  Sill 
Sellers  v.  Corwin  . 
Sere  v.  Petot 
V.  Pilot 
Sessieur  v.  Price  . 
Sevier  v.  Huskell  . 
Sewing  Machine  Co. 
Shankland  v.  Washington 
Sharp  V.  United  States 
Shaw  V.  Collier 
Shedds  v.  Barrow 
Sheets  v.  Seldon   , 
Shelby  v.  Gay 

Sheldon  v.  Sill      .         .     113 
Shelton  v.  Tiffin    .         .     115 

V.  United  States 
Shepart  v.  Taylor 
Shephard,  In  re  . 
Shepherd  v.  Graves 
Sherman  v.  Champlain  Co.  . 
Shields  v.  Barrow  132,  147,  215,  440 
V.  Thomas  .  .  .  499 
Ship  Virginia,  The  ...  60 
Shoemaker  v.  Mechanics'  Bank  .  144 
Shrew  v.  Jones  ....  183 
Shrewsbury  v.  United  States  .  350 
Shufford  V.  Cain  ....  134 
Shufield  V.  Buckley  .  .  .  500 
Shutte  V.  Thompson  .  404,  407,  481 
Siebald,  Ex  parte  .     165,  308,  309 

Silliman  v.  Hudson  R.  Br.  Co.  254,  255 
Sillman  v.  Hud.  Riv.  R.  Co.  .     171 

Silsby  V.  Fort  ....  169 
Silver  Lake  Bank  v.  Harding  .  494 
Silverhill  v.  United  States  .  .  291 
Silvey  v.  United  States  .         .     348 

Simms  t).  Guthrie  119,120,206,209 
Simons  v.  Cook  ....  494 
Simpson  v.  Brooks  ,  ,  .  456 
V.  Greely  .  .  .  240 
V.  Railroad  .  .  .  261 
Sims  V.  Sims  ....     496 

Sipes  V.  Whitney  .         .         .     495^  497 

Siren,  The 80 

Sizer  v.  Many  ....  258 
Skillern  v.  May  ....  287 
Slack  V.  Walcott  ....  495 
Slaughter  House  Cases  161,  428,  430 
Slawson  v.  United  States  .  347,  349 
Slocum  V.  Pomeroy  .  .  .  285 
Smith,  Ex  parte  .  .  .117,  300 
V.  Adsit      .  .  .     266,   269 

V.  Buruham        .         .         .     185 


Smith  V.  Clark 

V.  Condry    . 

V.  Gaines     . 

V.  Honey 

V.  Kernochen 

V.  Little 

V.  Maryland 

V.  Redden    . 

V.  Ross 

V.  Sac  County 

V.  Seek  Co. 

V.  Smith 

V.  United  States 


123, 


V.  Vaughen 
Smyth  V.  Strader  . 
Snyder  v.  Wise 
South  Ottawa  v.  Perkins 
Sparrow  V.  Strong         .     113 
Spaulding  v.  Tucker 
Spencer  v.  Brockway    . 

V.  United  States 
Stafford  v.  Union  Bank 
Starbuck  v.  Murray 
Starkweather  v.  Loomis 
State  V.  Adams 

V.  Armington 
V.  Com.  Council 
V.  Duffy 
V.  Helmer     . 
V.  Hull 

V.  Kirkpatrick 
V.  McBride   . 
V.  Pike 
V.  Warmouth 
State  Bank  v.  Knoop 
State  Tax  on  Foreign-held  B 
Steamboat  Burns  . 

Company,  The 
Co.  V.  Chase 
London,  The 
N.  E.,  The   . 
Orleans,  The 
Steamer  Virginia  v.  West 
Steamship  Circassian,  The 
Stearns  v.  United  States      65,  12 
Steere  v.  Tenney   . 
Steiger  v.  Bonn 
Stein  V.  Bouman  . 
V.  Bowman  . 
Steins  v.  Franklin  Co.  . 
Stevenson  v.  Williams  . 
Stewart  v.  Ingle    . 
V.  Salmon 
Stimpson  v.  Brooks 
V.  Pond 
V.  Westchester 
Stone  V.  Bishop 

V.  Palmer     . 
V.  Wisconsin 


PAGE 

.     257 

68 

.     179 

242,   244 

119,  121 
.  129 
.  264 
.  501 
.  499 
.  260 
.  260 
.  500 
347,  349, 
487 

172,  254 
.  241 

496,  501 
.  431 

240,  244 
.  472 
.  495 
.  347 
.  289 

499,  500 
.  495 
.  425 
.  500 
.  300 
.  300 

495,  497 
.  301 
.  425 
.  425 
.  425 
.  300 
.  113 
nds  149 

241,  257 
67 
57 

401 

89 

58,  65 

276 

60 

278 

494 

129 

407 

478,  479 
265 
158 

278,  428 
252 
458 
528 
428 
121 
489 
431 


XXll 


TABLE    OF   CASES. 


PAGE 

Stoner  v.  Ellis  ....  489 
Story,  Ex  parte      .  .  .  .     287 

V.  Livingston  185,  207,  208,  216, 
217,   219 

V.  Rennell  ....       88 
Sturgess  v.  Harold  .         .     275 

Sturgiss  V.  Boyer  .  '  .  .  .92 
St.  Jago  de  Cuba,  The  .         .       64 

St.  Lawrence,  The  .  57,  58,  59,  186 
St.  Louis  R.  Co.  V.  Indiana  &  St. 

L.  R.  Co 121 

St.  Louis  V.  Ferry  Co.  .  .  .  149 
St.  Luke's  Hospital  u.  Barclay  8,  119 
V.  Barkley  ,  98 
Stockwell  V.  Coleman  .  .  .  498 
V.  McCracken  .  ,  499 
Strade  v.  Churchill  .  .  .  494 
Stratton  v.  Jarvis  .  .  .     246 

Strauder  v.  West  Virginia  .  .161 
Strawbridge  tJ.  Curtis  .  .114,  133 
Strong,  Petitioner  .         .         .     301 

Stub  V.  McCrillus  .         .         .300 

Sudbury  v.  Stearns  .  .  .  300 
Sumner  ik  Hicks  .  .  .  .431 
V.  Marcy  ....  496 
Sunny  Side,  The  .  .  .  .472 
Supervisors  v.  United  States  -  302,  431 
Sutton  V.  Bancroft         .         .         .     289 

V.  Manderville  .  .  .  478 
Suydam  v.  Beals  ....  200 
v.  Williamson  169,  170,  260 
Suydan  v.  Williamson  240,  244,  260,  285 
Swasey  v.  North  Car.  R.  Co.  .  116 
Swift  V.  Tyson  .  .  .  .432 
Syms  V.  Lyle  .         .         .         .237 

Taitv.  DeEnde  .  .  .  .498 
Talbot  V.  Janson  ....  80 
V.  Wakeman  ...  70 
Tancred  v.  Christy  .  .  .260 
Tardy  v.  Morgan  ....  497 
Tarvin  v.  Rankin  ....  500 
Taylor,  Ex  parte   .         .         .      299,  300 

The 56 

V.  Barron  ....  495 
V.  Benham  .  .         .     204 

V.  Brigham  .  .  .  179 
V.  Cook  .  .  .  131,  440 
V.  Maguire  .  .210,  270 
V.  Merchants'  Fire  Ins.  Co.  194 
V.  Salmon  .         .         .229 

V.  Secor    ....     431 
V.  United  States         .         .     503 
Tennessee  v.  Davis        .         .      163,  164 
Bank  v.  Bank  of  Louis- 
ville .         .         .268 
Terry  v.  Commercial  Bank   .         .     248 
V.  Imp.  Fire  Ins.  Co.    .         .     153 
Texas  v.  Chiles      ....     475 
V.  White      .         .         .         .268 


68,  83 


PAGE 

135 

471 

138 

83 

460 

457 

458 

265 

80 

78 

295 

122 

309 

266 

457 

2 

69 

458 

HI 

257 

33 

93 

296 

500 

411 

,  170 

494 

431 

248 

247,  250 

136,  432 

.     495 

.     434 

.     485 

.     498 

.     243 

.     164 

.     405 

.     496 

Thurston  v.  U.  P.  R.  Co.     149,  156,  160 

Tilton,  The 64 

Tinstman  v.  First  National  Bank  .     243 
Tipton  V.  Mayfield  .         .         .498 

Titson  V.  United  States  .      339,  344 

Todd  V.  Daniel       .         .         .         .240 
Toland  v.  Sprague  .      127,  129,  177, 

179,  181,  189,  234,  239 
.  489 
.  406 
.  110 
.  69 
83,  85 
.  260 
.  123 
250,  268 
,  205 
.  149 
.  301 
.     498 


Thaxter  j;.  Hatch  . 

The  Akron  C.  and  P.  Co. 

The  Assessors  v.  Osborne 

The  Aurora  v.  United  States 

The  Avery     .... 

The  Baltimore 

The  Bay  City 

The  Binghamton  Bridge 

The  Brig  Alerta  v.  Moran 

The  Caroline  v.  United  States 

The  Exchange  v.  McFadden . 

The  Floyd  Acceptances 

The  King  v.  Luddis 

The  License  Cases 

The  Liverpool  Packet  . 

The  Moses  Taylor 

The  New  World  v.  King 

The  Pacific 

The  Phil.,  etc.,  R.  Co.  v.  Stimpson 

The  Protector 

The  Pueblo  Case  . 

The  Steamboat  Co.  v.  Chase 

The  Union  Insurance  Co.  v.  United 

States 
Thom  V.  Batory     . 
Thomas,  In  re 

V.  Lane    . 
V.  Robinson     . 
V.  Scotland 
V.  Woodbridge 
Thompson  v.  Dean 

V.  Lee  Co.    . 

V.  Manrow    . 

V.  Selden 

V.  Smith 

V.  Whitman . 
Thomson  v.  Butler 
Thornhall  v.  The  Collector 
Thorpe  v.  Simmons 
Thrasher  v.  Ingram 


Toohey  v.  Harding 
Tooker  v.  Thompson 
Torny  v.  Beardsley 
Towboat  Co. 
Town  V.  Steamship  Co. 
of  Ohio  V.  Marcy 
Parolet  t;.  Clark 
Tracy  v.  Holcomb  .      249, 

Traders'  Bank  v.  Campbell    . 
Trafton  v.  Nougues 
Traver  v.  Commissioners 
Trayden  v.  Justis 


TABLE    OF   CASES. 


XXlll 


Treadwell  v.  Joseph 
Trebilcoch  v.  Wilson     . 
Trial,  The      . 
Trigg  V.  Conway    . 
Triplett  v.  Bank    . 
Troy  V.  Evans 

Iron  and  Nail  Fac.  i'.  Corn- 
ing    .  .  .       218,  456,  457 
Trust  Co.  V.  Railroad  Co.      .         .     430 


PAGE 

70,  71,  83 
269 
401 
496 
434 
243 


Tufts  V.  Tufts 
Turner,  In  re 

V.  Bank     . 

V.  United  States 


.     220 

110,  148 

.     137 

.     340 


Twitchell  v.  The  Commonwealth 


Udell  V.  Davidson 
Union  Bank  v.  Geary    . 

V.  Stafford        117,  118, 
Ins.  Co.  V.  Kellogg     . 

V.  United  States    . 
Sugar  Refinery  v.  Matheeson 
United  States  v.  Adams     278,  291, 


V.  Addison 
V.  Alberty 
V.  Alire  . 
V.  Ambrose 
V.  Ames 
V.  Anderson 
V.  Armstrong' 

Foundry 
V.  Arwo  .     127, 

V.  Avery 
V.  Ayers 
V.  Backus 
V.  Bailey      153,  254, 
V.  Baker       122,  127, 
V.  Ballard 
V.  Bank  of  Met. 
V.  Barney      54,  125, 
V.  Barrels  of  Alcohol 
V.  Baugh 
V.  Bayley 

V.  Bench  .       56, 

V.  Betsey 
V.  Bevans      54,  125, 


V,  Biebusch 
V.  Bird    . 
V.  Blackford 
V.  Blaisdell 
V.  Block 
V.  Bostwick 
V.  Bradley 
V.  Breitling 
V.  Bridgman 
V.  Briggs 
V.  Bromley 
V.  Brown 


264, 
270 

270 
201 
131 
429 
81 
129 
292, 
428 
303 
439 
339 
449 
74 
347 


33,  34, 

110, 
339, 
123, 
178, 

170, 
164, 
526, 


296 
439 
255 
292 
440 
255 
439 
526 
122 
136 

85 
420 
171 
254 

92 
126, 
136 
495 
439 
422 
421 
240 
342 
255 
186 
129 
255 
259 
528 


PAGE 

United  States  v.  Buford 

.     487 

V.  Burnes 

344,  420 

V.  Burnett 

.     423 

V.  Burr    . 

.     418 

V.  Canal  Co.    . 

.     430 

V.  Carey 

.     276 

V.  Carter 

.     435 

V.  Catou 

.     435 

V.  Chicago 

.     254 

V.  Cigars 

.     472 

V.  City  Bank  . 

170,   171 

V.  Claflin 

.     138 

V.  Clark      118 

136,  346, 

352 

V.  Cogswell     . 

.     464 

V.  Collier 

.     487 

V.  Collins 

430,   449 

V.  Commissioners  .     300 

V.  Conaut 

.     421 

V.  Cook  . 

.     526 

V.  Cooledge  54 

,  125,   158, 

435 

V.  Coppersmith        .     455 

V.  Cornell 

.     127 

V.  Cornie 

.       34 

V.  Corrie 

.     439 

V.  Cruikshank 

.     421 

V.  Crussell 

.     292 

V.  Curtis 

.     422 

V.  Daniel 

.     255 

V.  Daniels 

.     172 

V.  Darling 

.     472 

V.  Davidson 

29 

V.  Davis 

.     411 

V.  Devaughan 

.     435 

V.  Devereux 

.     123 

V.  Devlin 

.     449 

V.  Dickinson 

.     420 

V.  Donlan 

126,   136 

V.  Doughty 

.       33 

V.  Douglass 

.     449 

V.  Dunham 

.     431 

V.  Dunn 

56,   122 

V.  Dustin 

.     627 

V.  Ebart 

.     420 

V.  Eckford  11 

3,  118,   136, 

487 

V.  Edward 

.     487 

V.  Eggleston 

.     487 

V.  EUiasen 

.     261 

V.  Emerson 

.     435 

V.  Fossalt 

.     248 

V.  Freeman 

.     127,   248 

V.  Furlong 

.      126 

V.  Gardner 

.     449 

V.  Gaussen 

.     487 

V.  Gear  . 

56 

V.  Girault 

.     240 

V.  Godbold 

.       30 

I'.  Gomez      2 

75,  289,  428 

XXIV 


TABLE   OF   CASES. 


PAGE 

United  States  v.  Goodwin 

249 

V.  Grand  Trunk  R. 

Co.    . 

431 

I'.  Graves 

183 

V.  Hage  . 

123 

275 

V.  Hall    . 

124 

V.  Halliiiay 

, 

55 

V.  Halstead 

182 

!'.  Hamilton 

418 

V.  Hare   . 

422 

V.  Barker 

463 

V.  Hawkins 

, 

286 

V.  Hajnes 

145 

V.  Hirsch 

526, 

527 

V.  Hoffman 

293, 

296 

V.  Holliday 

125, 

126 

V.  Holmes 

126 

r.  Huckabeer 

284 

V.  Hudson     5^ 

I,  118, 

125, 

13 

6,   138, 

435 

V.  Hughes 

234, 

476 

V.  Humphreys 

182, 

183 

V.  Ingersol 

418, 

466 

V.  Insurgents 

422 

V.  Irvine 

125, 

526 

V.  Jackalow 

127, 

140 

V.  Jackson 

421 

V.  Jacoby 

420, 

421 

V.  Johns 

494 

V.  Johnson 

302 

V.  Jones  . 

487 

V.  Kaufman 

343 

V.  Keokuk 

183 

V.  Kimbal     3C 

0,  347 

349 

V.  King   . 

260 

V.  Knight     18 

1,  182, 

290, 
431 

V.  Kuhn 

487 

V.  Lancaster  . 

125, 

172 

V.  Lathrop 

57, 

425 

V.  Lawrence   . 

300 

V.  Leonard 

422 

v'.  Little  Char 

es     . 

74 

V.  Maguire 

421 

V.  Marchant    . 

, 

127 

V.  Martin 

487 

V.  Maun  . 

, 

436 

V.  Maxwell 

42 

!'.  Mayo  . 

527 

V.  McAvoy 

. 

33 

V.  McDowell    . 

112 

V.  McFarlane  . 

420 

V.  McGill      12 

6,  127, 

439 

V.  McKee 

423 

V.  McLemone . 

314 

V.  Mingo 

. 

439 

V.  Mitchell 

490 

V.  Monson 

145 

V.  Moore 

191, 

306 

V.  Morris 

423 

PAGE 

United  States  v.  Morrison  .  183,  431 
V.  Murphy  .  .  423 
V.  Myers  .         .     476 

V.  New  Orleans  300,  302 
V.  Noelke  .  .  421 
V.  Norton  .  .  527 
V.  Nourse  .  .  248 
V.  O'Brian  ,  .  527 
V.  O'Callahan  ,     420 

V.  O'Grady  .  345,  346 
V.  O'SuUivan  .  ,  423 
V.  One  Horse  .  .  27 
V.  Package  .  .  456 
V.  Parrott  ,  189,  479 
V.  Pings .  .  .  180 
V.  Pirates  .  180,  420 
V.  People  .  .  269 
V.  Peters  .     149,  301 

V.  Pugh  .  294,  296,  348 
V.  Rand  ...  50 
V.  Ravara  .  .  8 
V.  Reed  255,  431,  449,  450 
V.  Reese .  .  .  161 
V.  Robertson  .  .  64 
V.  Robins  .  .  424 
V.  Rosenburgh  171,  255 
V.  Ross  .  .  127,  347 
V.  Russell  243,  339,  349 
V.  Sawyer  .  .  420 
V.  Schooner  Sally  .  80 
V.  Schumann  .  .  34 
V.  Scott  .  .  .420 
V.  Seamen  .  .  300 
V.  Seuart  .  .  422 
V.  Shackelford  .  449 
V.  Shares  of  Capital 

Stock  .  .  81 
V.  Smith  404,  418,  456, 
463,  464 
V.  Southmayd  .     422 

V.  State  Bank  .     343 

V.  Stone  171,  453,  454 
V.  Tallman  .  .  449 
V.  The  Chusan,  .  62 
V.  The  Little  Charles  71 
V.  The    Steamship 

Queen  .  .  79 
V.  Thompson  439,  267 
V.  Three  Tons  .     433 

V.  Three  Tons  of  Coal  476 


V.  Tilden 

408 

V.  Tingey 
V.  Tracy 
V.  Tuska 

421, 

123 
179 
449 

V.  Tyler  . 
V.  Vanzandt 

255 
487 

V.  Waller 

42 

V.  Watkins 

526 

V.  Watson 

34 

V.  Weed  . 

82, 

255 

TABLE    OF    CASES. 


XXV 


PAGE 

United  States  v.  White       125,  526,  527 
V.  Wiley  .         .     528 

V.  Williams  422,  429,  435, 
449,  481 
V.  Wilson  .  255,  449 
V.  Woodruff  .  .  449 
V.  Worrell  .  .125 
V.  Wright  .  527,  528 
V.  Young  292,  420,  428 
V.  28  Packages  ,  434 
V.  28  Packages  ofPins  86 
V.  37  Barrels  of  Rum  145 
V.  469  Barrels  .     434 

V.  5100  in  Specie  .  145 
V.  500  Barrels  458,  463 
Ex  parte  .       49,  301 

University  v.  People  .  .  265,  269 
Upton  V.  Triblecock      .         .       27,  460 

Vallandigham,  Ex  parte  .  7,  428 
Van  Antwerp  v.  Hulbard  .  143,  144 
Van  Arnam,  Ex  parte  .  .  310,  428 
Van  Orden,  Ex  parte  .  .  278,  428 
Van  Rensselaer  v.  Kearney  .  .  431 
Vannevar  v.  Bryant  .  .  148,  155 
Vansant  v.  Gaslight  Co.  .  .  252 
Vattier  v.  Hinde  117,  121,  132,  189,  204, 

209,  481 
Vaughan,  The  .  ,  ,  .100 
Venable  v.  Richards  .  .  .  152 
Venice,  The  ....       82 

Ventremaitre,  In  re  .  .  .  310 
Verden  v.  Coleman  .  •  .  248,  268 
Victor  V.  Cisco  ....  164 
Villabolos  v.  United  States  .  .  275 
Virgil  Paris,  Ex  parte  .  .  .  463 
Virginia,  The  ...  62,  76 
V.  Rivers  .         .         .     161 

V.  West  Virginia  .  .  230 
Von  Brocken  v.  Brooklyn  .  .  431 
Voorhees  v.  Bank  of  United  States  234 
Voss  V.  Luke  ....     435 

Wakeley  v.  Muscatine           .  .     300 

Walburn  v.  Babbitt       .         .  .     285 

V.  Skinner       .     116,  118,   119 

Walden  t;.  Bodley           .     194,  197,  211 

Walker  v.  Beal      .         .         .  .119 

V.  Commissioners      .  .     431 

V.  Parker           .         .  .     481 

V.  Taylor           .         .  244,  269 

V.  United  States  112,  242,  243, 

244 

Wallace  v.  Clark  .         .         .  178,  186 

V.  Holmes         .         .  .     208 

Wallen  v.  Williams        .         .  .     429 

Walls  V.  Thornton         .         .  ,90 

Walsh  V.  Rogers    ...  92 

Walter  v.  Belding          .         .  .     300 

Walton  V.  United  States  .     487 


498, 
494, 


306,   307, 


PAGE 

Waltz  V.  Amer.  Ex.  Co.         .         .     138 

Wanata,  The  ....       99 

Wanderer,  The      ....     140 

Ward  V.  Arredondo        .     114,  117,  135 

V.  Chamberlain    .     172,  183,  254 

V.  Peck         ....       64 

V.  Quinlivin  .         .         .     497 

V.  State        .         .         .     279,  280 

V.  The  Ogdensburg      .         .       68 

V.  Tompson  ...       58 

Warden  v.  Town  Council      .         .     300 

Warfield  v.  Chaffee        .         .         .     268 

Waring  v.  Clark    . 

Warmouth,  Ex  parte     .         .     165,  296 

Warner  v.  Fowle  ....     164 

Warren  Manufac.  Co.  v.  Etna  Ins. 

Co 

Warren  v.  Flagg   . 
V.  McCarthy 
V.  Wade    . 
Washabaugh  v.  Entriken 
Washington,  The  . 
Waters  v.  United  States 
Watkins,  Ex  parte 
Watson  V.  Bondurant    . 
V.  Jones    . 
V.  Sutherland   . 
V.  The  City  Council 
Watts  V.  Waddle  . 
Wave,  The     . 
Way  V.  Bagshaw    . 
Waymouth  v.  Railroad  Co. 
Weaver  v.  Owens 

Webster  D.  Cooper        .     117,  253, 
V.  Hunter 
V.  Lee  County 
Weed  V.  Kellogg  . 

Sewing  Machine  Co. 
Wicks 
Weeks  v.  Pearsons 
Weems  v.  George 
Welch  V.  Sykes 
Wells  V.  McGregor 
West  V.  Aurora 

V.  Brashear  . 
V.  Randall     . 

V.  Smith        .         .         .179 
Tennessee  v.  Citizens'  Bank 
Wisconsin  R.  Co.  v.  Foley 
Western  Metropolis       . 
Western  Union  Tel.  Co.  v.  Rogers 


500 
500 
500 
495 
496 

70 
349 
309 
110 
430 
433 
266 
497 

66 
236 
499 

59 
431 
498 
302 
407 


Westerville  v.  Lewis 
Weston  V.  Charleston    . 
V.  City  Council 
Wethers  v.  Buckley 
Weyanga  v.  Ayling 
Weyanwega  v.  Ayling  . 
Wheeler  v.  Raymond     . 
Wheeling  v.  Mayor 


116,  119,  179 
500 
124 
499 
227 
149 
275 
206 
197 
266 
289 
84 
242, 
243 
498 
109 
266 
264 
171 
255 
496 
301 


XXVI 


TABLE    OF   CASES. 


PAGE 

PAOB 

Whipple    V.    Cumberland    Cotton 

Wilson's  case 

309 

Co 

472 

Winchester  v.  Jackson  . 

289 

"Whitaker  v.  Bramson     . 

497 

V.  United  States 

347 

White  V.  Commonwealth 

125 

Winder  v.  Caldwell 

. 

427 

V.  Railroad 

136 

Windsor  v.  McVeigh 

267 

V.  Smith 

269 

Winter  v.  Simonton 

481 

V.  Strother 

495, 

496 

Winthrop  v.  Ins.  Co.      . 

405 

V.  Turk 

176, 

254 

V.  Union  Ins.  Co.  . 

479, 

480 

V.  Vermont  &  M.  R.  C 

0. 

136 

Wiscart  v.  Dauchy 

7 

White's  Bank  v.  Smith 

269 

Wisconsin  v.  Duluth 

113 

Whiting  V.  Bank  of  United  States 

219, 

Wise  V.  Columbia  Turnpike  Cc 

. 

242, 

247, 

250 

260, 

262 

Whitlock  V.  The  Thales 

62 

V.  Turnpike  Co.    . 

242 

Whitney,  Ex  parte 

111, 

302 

Withenbury  v.  United  States 

255 

V.  Bank  . 

251 

Withers  v.  Buckley 

. 

264 

V.  Cook  . 

277 

Wolf  V.  Rabaud     . 

115 

V.  Hunt  . 

403 

V.  Stix 

266 

Whittaker  v.  Murray     . 

498 

V.  Usher 

253 

Whittlesey  v.  United  States 

352 

Wood,  Ex  parte     . 

427 

Wiclifife  V.  Hill      . 

481 

V.  Davis 

117 

118 

V.  Owings 

137, 

199 

V.  Kellogg  . 

. 

478 

Wiggins  V.  Gray    . 

172, 

254 

V.  Mathews 

167 

Wigman  v.  Southard     . 

427 

V.  Wagnon 

235 

Wilcox  V.  Cassock 

498 

Woodman  v.  Latimer    . 

431 

V.  Hunt 

179 

Woods  V.  United  States 

503 

Wilder  v.  Union  Nat.  Bank 

149 

Woodward  v.  Tremere  . 

498 

499 

Wilie  V.  Cox 

248 

Woodworth  v.  Edwards 

235 

Willard  v.  Dorr 

65 

Worcester  v.  Georgia    . 

264 

270 

Willford  V.  Miller . 

479 

V.  Truman     . 

209 

William  D.  Rice,  The    . 

, 

64 

Wormley  v.  Wormley          118, 

132, 

205, 

William  Many,  Ex  parte 

299 

208 

Williams  v.  Bank  . 

.      240 

257 

Worthy  v.  Commissioners     . 

265 

V.  Bankhead  . 

441 

Wright  V.  Ellison 

434 

V.  Benedict     . 

183 

V.  Wersinger 

499 

V.  Bruffy 

265 

Wymau  v.  Southard      .      172, 

182, 

183, 

V.  Norris 

266 

269 

185 

429 

V.  Suffolk  Ins.  Co. 

432 

V.  Wilkes 

494 

Yeaton  v.  Fry 

481 

Williamson  v.  Berry 

431 

V.  Lenox    . 

257 

Wills,  Ex  parte 

307 

Yerger,  Ex  parte  .         .           7 

307 

311 

Wilson    Sewing   Machine   ( 

^0.     V. 

York  City  v.  Miln 

125 

Jackson 

, 

405 

York  Co.  V.  Central  R.  Co.    . 

481 

Wilson  V.  City  Bank 

. 

124 

Young  V.  Bryan     . 

135 

V.  Fisher's  Ex.  . 

134 

V.  Pott 

205 

208 

V.  Graham 

, 

194 

Yungling  v.  Johnson 

429 

V.  Insurance  Co. 

240 

V.  Jackson 

498 

Zane  v.  The  President  . 

58 

V.  Life  and  Trust  Ins 

'.  Co.' 

257 

Zeller  v.  Switzer    . 

, 

249 

V.  Sandford      141,  2 

38,  259 

,  426 

Zyanga  del  Valie  v.  Harrison 

. 

243 

V.  Stolly    . 

. 

203 

FEDERAL  PLEADING, 
PRACTICE  AND  PROCEDURE. 


CHAPTER  I. 

JUDICIAL    POWER    OF    THE    UNITED    STATES. 

§  1.  Independent  po^wers  of  the  legislative,  judicial  and  executive 
departments. — The  wisdom  of  those  concerned  in  framing  the  Con- 
stitution of  our  government  is  nowhere  more  conspicuous  than  in 
those  provisions  of  it  which  relate  to  the  judicial  power.  They 
were  familiar  with  the  theories  of  political  philosophers  as  well  as 
the  experiences  of  other  nations  in  their  efforts  to  establish  free 
governments,  and,  with  the  knowledge  derived  from  these  sources, 
they  wisely  resolved  that  our  government  should  consist  of  three 
departments  —  legislative,  judicial  and  executive  —  each  having 
powers  to  be  exercised  independent  of  the  others.  These  elements 
had  been  urged  as  essential  to  the  success  of  a  free  government  b,v 
patriots,  statesmen  and  speculative  philosophers,  and  it  was  be- 
lieved by  them,  if  not  generally  regarded  as  a  maxim,  that  these 
three  necessary  departments  of  a  government  should  be  kept  sep- 
arate and  distinct  and  independent  of  each  other. 

The  distinguishel  political  writer  Montesquieu  had  maintained 
this  doctrine  with  great  force  and  vigor  in  his  commentary  on  the 
English  Constitution,  wherein  he  observed :  "  When  the  legislative 
and  executive  powers  are  united  in  the  same  person  or  in  the  same 
body  of  magistrates  there  can  be  no  liberty,  because  apprehensions 
may  arise  lest  the  same  monarch  or  senate  should  enact  tyrannical 
laws  or  execute  them  in  a  tyrannical  manner  ;"  that  were  the  judicial 
power  "joined  with  the  legislative,  the  life  and  liberty  of  the  sub- 
ject would  be  exposed  to  arbitrary  control;  for  the  judge  would  be 
the   legislator:"   and   that  "where   it    is  joined   to   the   executive 


2       FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

power,  the  judge  might  behave  with  violence  and  oppression." 
And  he  concludes  by  saying:  "There  would  be  the  end  of  every- 
thing were  the  same  man,  or  the  same  body,  whether  of  tlie  nobles 
or  of  the  people,  to  exercise  these  three  powers,  that  of  enacting 
laws,  that  of  executing  the  public  resolutions,  and  of  trying  the 
causes  of  individuals."^ 

Sir  William  Blackstone  had  also  impressed  the  necessity  of  an 
independent  exercise  of  these  functions  of  a  well-regulated  govern- 
ment, in  his  usual  terse  and  forcible  style.  In  his  Commentaries 
on  the  Laws  of  England,  be  observes  :  "  In  all  tyrannical  govern- 
ments the  supreme  magistracy,  or  the  right  both  of  making  and  of 
enforcing  laws,  is  vested  in  the  same  man,  or  one  and  the  same 
body  of  men ;  and  wherever  these  two  powers  are  united  together 
there  can  be  no  public  liberty.  The  magistrate  may  enact  tyran- 
nical laws,  and  execute  them  in  a  tyrannical  manner,  since  he  is 
possessed,  in  quality  of  dispenser  of  justice,  with  all  the  power 
which  he  as  legislator  thinks  proper  to  give  himself.  But  Avhere 
the  legislative  and  executive  authority  are  in  distinct  hands,  the 
former  will  take  care  not  to  intrust  the  latter  with  so  large  a  power 
as  may  tend  to  the  subversion  of  his  own  independence,  and  there- 
with of  the  liberty  of  the  subject."^ 

It  requires  no  argument  to  show  the  importance  of  a  judiciary 
department  of  the  government  of  all  civilized  people,  or  that  the 
scope  of  judicial  power  should  be  co-extensive  with  the  legislative 
department.  If  it  were  otherwise  there  would  be  no  power  to 
enforce  the  rights  of  persons,  and  there  would  be  no  remedy  for  a 
violation  of  those  rights. 

On  this  subject  Mr.  Story  observes  :  "  Where  there  is  no  judicial 
department  to  interpret,  pronounce  and  execute  the  law,  to  decide 
controversies  and  to  enforce  rights,  the  government  must  either 
perish  by  its  own  imbecility,  or  the  other  departments  of  govern- 
ment must  usurp  powers  for  the  purpose  of  commanding  obedience, 
to  the  destruction  of  liberty."^ 

There  must  be  a  judicial  powgr  to  give  effect  to  the  will  of  the 
legislative  power,  and  the  want  of  this  was  among  the  vital  defects 
of  the  original  confederation  of  the  states.^ 

^  Montesquieu,  B.  11,  ch.  6.  ^  Story  on  the  Const.  |  1574.     See 

2  1  BL   Com.    146.     See   also    The     also  1  Kent  Com.  294. 
Federalist,  No.  47.  *  The  Federalist,  Nos.  33,  39,  80  ;  1 

Story  on  Const.  344-384. 


JUDICIAL    POWER.  '6 

§  2.  "Where  the  judicial  power  is  vested. — The  Constitution  de- 
clares that  "  the  judicial  power  of  the  Uniterl  States  shall  be  vested 
in  one  Supreme  Court,  and  in  such  inferior  courts  as  the  Congress 
may  from  time  to  time  ordain  and  establish."^ 

It  has  been  maintained  with  much  ability  that,  under  this  pro- 
vision, Congress  had  no  discretion  as  to  the  creation  or  organization 
of  a  Supreme  Court  and  of  inferior  courts ;  that  the  language  was 
mandatory,  and  that  Congress  could  not  have  refused  to  create  these 
courts  without  a  violation  of  its  duty.-  But  it  is  unnecessary  to 
discuss  this  question,  as  power  was,  by  the  Constitution,  conferred 
on  Congress  for  this  purpose,  and  it  has  provided  for  the  organiza- 
tion of  a  Supreme  Court  and  of  inferior  courts. 

The  importance  of  limiting  the  court  of  final  resort  to  one  Su- 
preme Court  will  be  obvious.  If  there  were  more  than  one,  a 
diversity  of  decisions  might  and  probably  would  occur ;  and  this 
diversity,  relating  not  only  to  general  principles  of  the  municipal 
law,  but  to  the  interpretation  of  statutes  and  the  Constitution, 
would  lead  to  doubts,  distrust  and  disputes,  and  subject  the  admin- 
istration of  justice  by  the  federal  courts  to  reproach  and  disgrace. 

The  Constitution  left  Congress  to  provide  for  the  organization 
and  constitution  of  the  federal  courts.  It  prescribes  the  extent  of 
the  judicial  power  of  the  United  States,  and  expressly  provides  in 
what  cases  the  Supreme  Court  shall  have  original  jurisdiction  ; 
giving  it  appellate  jurisdiction  in  other  cases. 

§  '6.  Extent  of  judicial  power. — On  the  subject  of  the  extent  of 
judicial  power  the  Constitution  provides  :  "  The  judicial  power  shall 
extend  to  all  cases,  in  law  and  equity,  arising  under  this  Consti- 
tution, the  laws  of  the  United  States,  and  treaties  made  or  which 
shall  be  made  under  their  authority  ;  to  all  cases  affecting  ambas- 
sadors, other  public  ministers  and  consuls;  to  all  cases  of  admiralty 
and  maritime  jurisdiction;  to  controversies  to  which  the  United 
States  shall  be  a  party ;  to  controversies  between  two  or  more 
states ;  between  a  state  and  citizens  of  another  state ;  between 
citizens  of  different  states  ;  between  citizens  of  the  same  state  claim- 
ing lands  under  grants  of  different  states,  and  between  a  state  or 
the  citizens  thereof  and  foreign  states,  citizens  or  subjects."^ 

'  Const,  art.  3,  §  1.  The  Moses  Taylor,  4  Wall.  411  ;    1 

2  Martin   v.   Hunter,    1    Wh.    304;     Kent  Com.  318. 

^  Const,  art.  3,  §  2. 


4  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

§  4.  Amendment  construing  this  section. — It  may  be  proper  here 
to  refer  to  a  controversy  that  arose  soon  after  the  ratification  of  the 
Constitution  in  1787,  as  to  the  proper  construction  of  a  clause  of 
the  foregoing  section.  The  question  presented  was,  whether  a  stale 
could  be  sued  in  a  federal  court  by  a  citizen  of  another  state. 
Congress  had  provided  for  the  organization  of  the  Supreme  Court 
and  district  and  circuit  courts,  and  given  them,  respectively,  juris- 
diction in  certain  cases.  It  had  long  been  a  maxim  of  the  law  that 
a  sovereign  power  could  not  be  sued  in  its  own  courts  except  by  its 
consent.  On  the  other  hand  a  government  in  its  corporate  capacity 
may  sue  like  an  individual,  and  the  various  states  of  the  Union 
have  authority  to  sue  in  the  state  and  federal  courts.  In  the  case  of 
Chisholm  v.  Georgia,'  the  Supreme  Court  held  that  the  Constitution 
gave  that  court  jurisdiction  of  a  suit  brought  against  a  state  by  a 
citizen  of  another  state.  This  interpretation  of  the  Constitution, 
however,  excited  much  opposition  and  dissatisfaction,  and  led  to  the 
adoption  of  an  amendment  which  prohibited  the  construction  which 
it  had  received  by  the  Supreme  Court. 

The  amendment  is  as  follows:  '*  The  judicial  power  of  the  United 
States  shall  not  be  construed  to  extend  to  any  suit  in  law  or  equity, 
commenced  or  prosecuted  against  orie  of  the  United  States  by 
citizens  of  another  state,  or  by  citizens  or  subjects  of  any  foreign 
state."' 

i2I)all.  419.  United    States    in    a    very    different 

''  Amend.  Const,  art.  11.  In  Ohis-  view." 
Iiolni  V.  Geor<iia,  svjna,  Mr.  Chief  Anion^  the  lucid  expositions  of  the 
•Justice  Jay,  vho  j:ave  the  opinion  of  various  provisions  of  the  Constitution 
the  court  in  the  case,  in  construinj^  contemporary  with  the  orif^in  of  that 
the  constitutional  provision,  made  a  instrument  contained  in  The  Federal- 
distinction  between  a  suit  against  a  ist  we  find  some  considerations  of  this 
state  and  one  against  the  United  subject  in  No.  81,  now  credited  to 
States,  holding  that  the  former  might  Alexander  Hamilton,  He  says:  "It 
be  sued  by  a  citizen  of  another  state,  has  been  suggested  that  an  assign- 
but  not  the  latter.  He  said  :  "  In  all  ment  of  public  securities  of  one  state 
cases  of  actions  against  states  or  in-  to  the  citizens  of  another  would  en- 
dividual  citizens  the  national  courts  able  them  to  prosecute  that  state  in 
are  supported  in  all  their  legal  and  the  federal  courts  for  the  amount  of 
constitutional  proceedings  and  judg-  those  securities — a  suggestion  which 
ments  by  the  arm  of  the  executive  the  following  considerations  prove  to 
powers  of  the  United  States.  But  in  be  without  foundation.  It  is  inherent 
cases  of  actions  against  the  United  in  the  nature  of  sovereignty  not  to  be 
States  there  is  no  power  which  the  amenable  to  the  suit  of  an  individual 
courts  can  call  to  their  aid.  From  without  its  consent.  This  is  the  gen- 
this  distinction  important  conclusions  eral  sense  and  the  general  practice  of 
are  deducible ;  and  they  place  the  mankind;  and  the  exception,  as  one 
case  of  a  state   and  the  case  of  the  of  the    attributes  of   sovereigntv.    is 


JUDICIAL    POWER. 


Whatever  may  have  been  the  true  construction  of  this  clause  of 
the  Constitution,  it  is  now  settled  by  this  mandatory  amendment. 

§  5.  Summary  of  reasons  on  •which  the  judicial  power  rests. — Before 
proceeding  to  the  consideration  of  the  organization  and  jurisdiction 
of  the  federal  courts  we  will  notice  that  brief  summary  of  reasons 
on  which  each  of  the  enumerated  judicial  powers  of  the  Constitution 
rests,  as  set  forth  in  the  opinion  of  Mr.  Chief  Justice  Jay  in  the 
case  of  Chisholm  v.  Georgia,  supra.  He  said  :  "  It  may  be  asked 
what  is  the  precise  sense  and  latitude  in  which  the  words  '  to  estab- 
lish justice,'  as  here  used  [in  the  preamble  of  the  Constitution], 
are  to  be  understood  ?  The  answer  to  this  question  will  result 
from  the  provisions  made  in  the  Constitution  on  this  head.  They 
are  specified  in  the  second  section  of  the  third  article,  where  it  is 
ordained  that  the  judicial  power  of  the  United  States  shall  extend 
to  ten  descriptions  of  cases,  namely  :  1.  To  all  cases  arising  under 
this  Constitution  ;  because  the  meaning,  construction  and  operation 
of  a  compact  ought  always  to  be  ascertained  by  all  the  parties,  not 

now  enjoyed  by  the  government  of  jmd  to  ascribe  to  the  federal  courts, 
every  state  in  the  Union.  Unless, 
therefore,  there  is  a  surrender  of  this 
immunity  in  the  plan  of  the  conven- 
tion, it  will  remain  with  the  states, 
and  the  danger  intimated  must  be 
merely  ideal.  The  circumstances 
which  are  necessary  to  produce  an 
alienation  of  state  sovereignty  were 
discussed  in  considering  the  article  on 
taxation,   and  need   not  be   repeated 


by  mere  implication  and  in  destruc- 
tion of  a  pre-existing  right  of  the 
state  governments,  a  power  which 
would  involve  such  a  consequence, 
would  be  altogether  forced  and  un- 
warranted." 

It  would  appear  from  this  that 
the  opinion  of  the  court  in  Chisholm 
V.  Georgia  differed  from  that  of  Mr. 
Hamilton  at  the  time  he  was  urging 
here.  A  recurrence  to  the  principles  the  adoption  of  the  Constitution.  It 
there  established  will  satisfy  us  that  is  evident  that  some  of  his  conclu- 
there  is  no  color  to  pretend  that  the  sions  were  erroneous,  as  suggested  by 
state  governments  would,  by  the  the  question,  "  IIow  could  recoveries 
adoption  of  that  plan,  be  divested  of  be  enforced?"'  It  might  be  replied, 
the  privilege  of  paying  their  own  as  we  enforce  judgments  against  ordi- 
debts  in  their  own  way,  free  from  any  nary  municipal  corporations,  backed 
constraint  but  that  which  flows  from  by  the  executive  power  of  the  United 
the  obligations  of  good  faith.  States.     See  Story  on  Const.  ^  1 ,  678. 

'•The  contracts  between  a  nation  and  In  1865  Congress  constituted  a 
individuals  are  only  binding  on  the  Court  of  Claims,  with  jurisdiction  to 
conscience  of  the  sovereign,  and  have     hear  and  determine  all  claims  founded 


no  pretension  to  a  compulsive  force. 
They  confer  no  right  of  action  inde- 
pendent of  the  sovereign  will. 

''To  what  purpose  would  it  be  to 
authorize  suits  against  states  for  the 
debts  they  owe?    How  could   recov- 


on  any  law  of  Congress,  or  upon  any 
regulation  of  an  executive  depart- 
ment, or  upon  any  contract  express 
or  implied  with  the  government  of 
the  United  States,  and  all  claims 
which  may  be  referred  to  it  by  either 


eries  be  enforced?  It  is  evident  it  house  of  Congress,  wliich  may  be  sug 
could  not  be  done  without  waging  gested  to  it  by  petition  tiled  therein 
war   again>t   the   contracting    state  ;     See  Rev.  Stat.  ch.  21. 


6  FEDERAL    PLEADIN«;,    PRACTICE    AND    PROCEDURE. 

by  authority  derived  from  only  one  of  them.  2.  To  all  cases 
arising  under  the  laws  of  the  United  States,,  because,  as  such  laws, 
constitutionally  made,  are  obligatory  on  each  state,  the  measure 
of  the  obligation  and  obedience  ought  not  to  be  decided  and  fixed 
by  the  party  from  whom  they  are  due,  but  by  a  tribunal  deriving 
authority  from  both  the  parties.  3.  To  all  cases  arising  under 
treaties  made  by  their  authority ;  because,  as  treaties  are  compacts 
made  by  and  obligatory  on  the  whole  nation,  their  operation  ought 
not  to  be  affected  or  regulated  by  local  laAvs  or  courts  of  a  part  of 
the  nation.  4.  To  all  cases  affecting  ambassadors,  or  other  public 
ministers  and  consuls ;  because,  as  these  are  officers  of  foreign 
nations,  whom  this  nation  are  bound  to  protect  and  treat  according 
to  the  laws  of  nations,  cases  affecting  them  ought  only  to  be  cogniz- 
able by  national  authority.  5.  To  all  cases  of  admiralty  and 
maritime  jurisdiction  ;  because,  as  the  seas  are  the  joint  property 
of  nations,  whose  rights  and  privileges  relative  thereto  are  regu- 
lated by  the  law  of  nations  and  treaties,  such  cases  necessarily 
belong  to  national  jurisdiction.  6.  To  controversies  to  which  the 
United  States  shall  be  a  party ;  because,  in  cases  in  which  the 
whole  people  are  interested,  it  would  not  be  equal  or  wise  to  let  any 
one  state  decide  and  measure  out  justice  due  to  others.  7.  To 
controversies  between  two  or  more  states ;  because  domestic  tran- 
quillity requires  that  the  contentions  of  states  should  be  peaceably 
terminated  by  a  common  judicatory  ;  and  because  in  a  free  country 
justice  ought  not  to  depend  on  the  will  of  either  of  the  litigants. 
8.  To  controversies  between  a  state  and  citizens  of  another  state ; 
because,  in  case  a  state  (that  is,  all  the  citizens  of  it)  has  demands 
against  some  citizens  of  another  state,  it  is  better  that  she  should 
prosecute  her  demands  in  a  national  court  than  in  a  court  of  the 
state  to  which  those  citizens  belong,  the  danger  of  irritations  and 
criminations  arising  from  apprehensions  and  suspicions  of  partiality 
being  thereby  obviated  ;  because,  in  cases  where  some  citizens  of 
one  state  have  demands  against  all  the  citizens  of  another  state,  the 
cause  of  liberty  and  the  rights  of  men  forbid  that  the  latter  should 
be  the  sole  judges  of  the  justice  due  the  former  ;  and  true  republican 
government  requires  that  free  and  equal  citizens  should  have  free, 
fair  and  equal  justice.  9.  To  controversies  between  citizens  of 
the  same  state  claiming  lands  under  grants  of  different  states : 
because,  as  the  rights  of  the  two  states  to  grant  the  land  are  drawn 


JUDICIAL    POWER.  i 

into  question,  neither  of  the  two  states  ought  to  decide  the  contro- 
versy. 10.  To  controversies  between  a  state,  or  the  citizens  thereof, 
and  foreign  states,  citizens  or  subjects  ;  because,  as  every  nation  is 
responsible  for  the  conduct  of  its  citizens  towards  other  nations, 
all  questions  touching  the  justice  due  to  foreign  nations  or  people 
ought  to  be  ascertained  by,  and  depend  on,  national  authority. 
Even  this  cursory  view  of  the  judicial  powers  of  the  United  States 
leaves  the  mind  strongly  impressed  with  the  importance  of  them 
to  the  preservation  of  the  tranquillity,  the  equal  sovereignty  and 
the  equal  rights  of  the  people." 

The  profound  wisdom  which  dictated  these  provisions  of  the  Con- 
stitution is  manifest  from  this  clear  outline  and  condensed  state- 
ment of  the  grounds  on  which  they  rest,  and  the  experience  of  a 
century  has  fully  confirmed  the  views  of  its  earlier  expounders. 

§  6.  Jurisdiction  of  the  Supreme  Court. — The  original  as  well  as 
the  appellate  jurisdiction  of  the  Supreme  Court  is  fixed  by  the 
Constitution.  It  provides  that  in  all  cases  affecting  ambassadors, 
other  public  ministers  and  consuls,  and  those  in  which  a  state  shall 
be  a  party,  the  Supreme  Court  shall  have  original  jurisdiction.  In 
all  the  other  cases  before  mentioned,  the  Supreme  Court  shall  have 
appellate  jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions 
and  under  such  regulations  as  the  Congress  shall  make.' 

It  is  manifest  that  the  Supreme  Court  cannot  lawfully  exercise 
original  jurisdiction  except  in  the  enumerated  cases,  and  that  no 
act  of  Congress  could  give  it  any  additional  jurisdiction,  or  take 
from  it  any  of  the  judicial  powers  conferred  upon  it  by  this  pro- 
vision of  the  Constitution.^ 

§  7.  The  original  jurisdiction  of  the  Supreme  Court  not  exclusive. — 
It  -has  been  a  question  of  considerable  controversy  whether  the 
grant  of  original  jurisdiction  to  the  Supreme  Court  in  the  specific 
cases  mentioned  in  the  Constitution  was  designed  to  make  this  juris- 
diction exclusive;  whether  it  should  be  construed  to  give  it  juris- 
diction in  such  cases,  exclusively  of  other  federal  courts  which 
might  be,  and  have  since  been,  erected  and  organized  under  acts  of 
Congress,  in  pursuance  of  the  authority  given  by  the  Constitution 

'  Art.  3,  sec.  2,  Const.  U.  S.  et  seq. ;   Ex  parte  Vallandingham,  1 

■^  Marbury  v.  Madison,  1  Cr.  137;  Wall,  248 ;  ii^x  j^arie  Yerger,  S  Wall. 

(1801)  Wiscart   v.   Dauchy,    3    Dall.  85;  The  Alicia,  7  Wall.  571 ;  Kentucky 

321  ;    1  Kent.  Com.,  sec.   15,  p.  314,  v.  Dennison,  24  How.  66. 


8  FEDERAL    PLEADIN(J,    PHACTICL    AM)    PROCEDURE. 

for  this  purpose.  This  question  has  never  been  authoritatively 
settled  bj  the  Supreme  Court;  for,  although  in  the  case  of  United 
States  V.  Ravara/  commenced  in  the  circuit  court  for  the  district 
of  Pennsylvania,  it  was  held  that  Congress  could  give  other  federal 
courts  concurrent  jurisdiction  in  such  cases,  the  opinion  of  the 
Supreme  Court  in  the  subsequent  case  of  Marbury  v.  Madison - 
would  appear  to  be  in  conflict  with  this  doctrine;  and  in  the  still 
later  case  of  United  States  v.  Ortega,^  the  question  was  involved  in 
the  record,  but  the  court  did  not  find  it  necessary  to  decide  it. 

It  has,  however,  been  maintained  by  jurists  of  great  eminence 
and  ability  that  it  is  not  essential  to  construe  this  provision  of  the 
Constitution  as  giving  the  Supreme  Court  exclusive  original  juris- 
diction in  the  cases  specified,  and  that  there  is  nothing  in  it  incon- 
sistent with  the  power  of  Congress  to  create  inferior  courts,  and- 
confer  upon  them  original  jurisdiction  concurrent  with  the  Supreme 
Court,  in  the  same  specific  cases ;  and  this  construction  was  ably 
maintained  by  Mr.  Justice  Nelson,  in  Graham  v.  Stucken.^ 

The  judicial  powers  of  the  United  States,  as  we  have  seen,  were 
vested  in  the  Supreme  Court,  and  in  such  inferior  courts  as  Con- 
gress should  establish.  When  inferior  courts  were  first  organized 
and  established,  as  they  were  by  the  Judiciary  Act  of  1789,  Con- 
gress gave  the  circuit  and  district  courts  jurisdiction  of  certain 
causes  of  which  the  Supreme  Court  also  had  jurisdiction,  by  virtue 
of  the  provisions  of  the  Constitution.  The  provisions  of  this  act 
have  remained  unchanged  in  this  respect,  and  were  incorporated 
into  the  Revised  Statutes.^ 

This  practical  contemporaneous  exposition  and  legislative  inter- 
pretation of  the  Constitution  by  Congress,  some  of  whose  members 
were  especially  interested  in  framing  the  Judiciary  Act  and  had 
been  members  of  the  convention  that  framed  the  Constitution, 
and  the  long  acquiescence  in  and  tacit  recognition  of  this  interpre- 
tation by  the  courts,  both  state  and  federal,  and  by  Congress,  is 
certainly  quite  satisfactory  if  not  conclusive  on  this  question.  In 
support  of  this  view,  Mr.  Justice  Nelson,  in  Graham  v.  Stucken, 
supra,  says:  "The  last  clause  of  section  2,  article  3,  of  the  Con- 

1  2  Dall.  297.  on  Constitution,  ?  1705  ;  1  Kent  Com. 

■^  11  Wh.  467.  »'stat.  at  L.  78  ;  Rev.  Stat.  U  629, 

«4  Blatch.  50.     See  also  St.  Luke's     687;  act  March  3,  1875,  eh.  137,  IS 
Hospital  V.  Barclay,  3  Id.  259  ;  Story     Stat.  470. 


JUDICIAL    I'OAVEIl.  S:* 

stitution  declares  tljat  in  all  cases  afiocting  aoibassadors,  and 
other  public  ministers  and  consuls,  and  in  those  in  which  a  state 
shall  be  a  party,  the  Supreme  Court  shall  have  original  jurisdiction. 
Congress,  in  distributing  and  regulating  this  grant  of  jurisdiction, 
provided,  in  section  13  of  the  Judiciary  Act,  that  the  Supreme 
Court  should  have  exclusive  jurisdiction  in  all  cases  against  ambas- 
sadors, etc. ;  and  original,  but  not  exclusive,  jurisdiction  in  all 
cases  'in  which  a  consul  or  vice-consul  shall  be  a  party,'  thus 
clearly  rejecting  the  idea  that  the  grant  in  the  Constitution  in  re- 
spect to  consuls  was  exclusively  to  the  Supreme  Court." 

I  apprehend  that  it  may  be  safely  affirmed  that  Congress  has  the 
powder  to  confer  on  any  or  all  of  the  inferior  courts  of  the  Uniteii 
States,  which  she  has  constituted  or  mav  hereafter  constitute,  ori^;- 
inal  jurisdiction  in  any  or  all  of  the  class  of  cases  in  which  the 
Constitution  has  also  conferred  original  jurisdiction  on  the  Supreme 
Court. 


CHAPTER  II. 

CONSTITUTION    AND    ORGANIZATION    OF    FEDERAL    COURTS. 

>j  8.  Duty  of  Congress  to  provide  for. — The  Constitution  vested 
the  judicial  power  of  the  United  States  in  one  Supreme  Court  and 
such  inferior  courts  as  Congress  might  from  time  to  time  constitute. 
It  was  further  provided  by  the  Constitution  that  the  President 
"shall  nominate  and,  by  and  with  the  advice  and  consent  of  the 
Senate,  shall  appoint  .  .  .  judges  of  the  Supreme  Court  ;"^  and 
that  "the  judges,  both  of  the  Supreme  and  inferior  courts,  shall 
liold  their  offices  during  good  behavior,  and  shall  at  stated  times 
receive  for  their  services  a  compensation  which  shall  not  be  dimin- 
ished during  their  continuance  in  office.""^ 

■  It  was  the  manifest  duty  of  Congress,  under  the  circumstances, 
to  provide  for  the  organization  of  a  Supreme  Court  and  inferior 
courts  of  the  United  States. 

In  pursuance  of  this  plain  duty  Congress  did,  by  the  act  of  Sep- 
tember 24,  1789,  divide  the  United  States  into  judicial  districts 
and  provide  for  the  organization  of  the  Supreme  Court  and  district 
and  circuit  courts,  and  their  jurisdiction,  the  number  of  justices  of 
the  Supreme  Court,  their  precedence  and  salaries,  and  the  appoint- 
ment of  clerks  and  marshals.  Some  changes  have  necessarily  been 
made  in  this  organic  act,  but  its  provisions  remain  substantially  the 
>ame  in  the  Revised  Statutes,  which,  with  the  amendments  thereof, 
divide  the  United  States  into  districts  as  follows : 

§  9.    Provisions  of  the  statutes  creating  judicial  districts. 

Judicial  Districts. — Sec.  530.  The  United  States  shall  be 
divided  into  judicial  districts  as  follows  ; 

States  constituting  one  district. — See.  531  (as  amended  by 
act  of  June  26,  1876,  19  Stat.  61).  The  states  of  California, 
Colorado,  Connecticut,  Delaware,  Indiana,  Iowa,  Kansas,  Ken- 
tucky, Louisiana,  Maine,  Maryland,  Massachusetts,  Minnesota, 
Nebraska,  Nevada,  New  Hampshire,  New  Jersey,  Oregon,  Rhode 
Island,  Vermont  and  West  Virginia,  each,  constitute  one  judicial 
district. 

'  Const,  art.  2,  ?  2.  '^  Const,  art.  3,  |  1. 


FEDERAL    COURTS.  11 

Alabama. — Sec.  532.  The  state  of  Alabama  is  divided  into 
three  districts,  which  shall  be  called  the  southern,  middle  and 
northern  districts  of  Alabama.  The  southern  district  includes  the 
counties  of  Mobile,  Washington,  Baldwin,  Sumpter,  Clarke,  Ma- 
rengo, Greene,  Pickens,  Wilcox,  Monroe  and  Conecuh.  The 
middle  district  includes  the  counties  of  Montgomery,  Autauga, 
Coosa,  Tallapoosa,  Chambers,  Talladega,  Randolph,  Macon,  Rus- 
sell, Barbour,  Pike,  Henry,  Dale,  Coffee,  Covington,  Lowndes, 
Dallas,  Perry,  Bibb,  Shelby,  Butler  and  Tuscaloosa.  The  northern 
district  includes  the  remaining  counties  of  said  state. 

Arkansas. — Sec.  533  (as  amended  by  act  of  January  31,  1877, 
19  Stat.  230).  That  the  state  of  Arkansas  is  divided  into  two 
districts,  which  shall  be  called  the  eastern  and  western  districts  of 
Arkansas.  The  western  district  includes  the  counties  of  Benton, 
^Vashington,  Crawford,  Sebastian,  Scott,  Polk,  Sevier,  Little  River, 
Howard,  Montgomery,  Yell,  Lognn,  Franklin,  Johnson,  Madison, 
Newton,  Carroll,  Boone  and  Marion,  and  the  country  lying  west 
of  Missouri  and  Arkansas  known  as  the  Indian  Territory.  The 
eastern  district  includes  the  residue  of  said  state. 

Colorado.— The  act  of  June  2d,  1876,  ch.  147,  §  1,  19  Stat. 
<31,  provides  :  That  the  state  of  Colorado  shall  constitute  one  judicial 
district,  to  be  called  the  district  of  Colorado.   .  .   . 

Florida. — Sec  534  (as  amended  by  act  of  February  3,  1879,  ch. 
43,  §  1,  10  Stat.  280).  The  state  of  Florida  is  divided  into  two 
judicial  districts,  which  shall  be  called  the  northern  and  southern 
districts  of  Florida.  The  southern  judicial  district  of  the  state  of 
Florida  shall  embrace  the  counties  of  Hernando,  Hillsborough,  Polk, 
Manatee  and  Monroe,  in  said  state ;  and  all  the  territory  within 
the  remaining  counties  shall  constitute  the  northern  judicial  district. 

Georgia. — Sec.  535  (as  amended  by  act  of  January  29, 1880,  ch. 
17,  §  1,  21  Stat.  62).  The  state  of  Georgia  is  divided  into  two 
districts,  which  shall  be  called  the  northern  and  southern  districts  of 
Georgia.  The  northern  district  includes  the  counties  of  Troup, 
Meriwether,  Morgan,  Green,  Taliaferro,  Wilkes  and  Lincoln,  as 
they  existed  August  11,  1848,  with  all  the  counties  north  of  them. 
The  southern  district  includes  the  counties  of  Harris,  Talbot,  Up- 
son, Monroe,  Jones,  Putnam,  Hancock,  Warren  and  Columbia,  Pike, 
Butts  and  Jasper,  as  they  existed  at  said  date,  with  all  the  counties 
south  of  them. 


12  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

The  act  of  January  29,  1880,  ch.  17,  §  2,  21  Stat.  63,  provides: 
The  said  southern  district  of  Georgia  shall  be  divided  into  two 
divisions,  to  be  known  as  the  eastern  and  western  divisions  of  tlie 
southern  district  of  Georgia.  The  western  division  shall  consist  of 
forty-three  counties,,  to  wit :  Bibb,  Monroe,  Jones,  Twiggs,  Hous- 
ton, Crawford,  Baldwin,  Wilkinson,  Laurens,  Pulaski,  Dooly,  Ma- 
con, Taylor,  Upson,  Pike,  Butts,  Jasper,  Putnam,  Hancock,  War- 
ren, Dodge,  Wilcox,  Telfair,  Sunipter,  Schley,  Marion,  Talbot, 
Harris,  Muscogee,  Chattahoochee,  Stewart,  Webster,  Lee,  Terrell, 
Randolph,  Quitman,  Clay,  Calhoun,  Dougherty,  Baker,  Early, 
Miller  and  Mitchell.  The  eastern  division  shall  consist  of  the 
remaining  counties  in  said  district.  No  additional  clerk  or  marslial 
shall  be  appointed  in  said  district. 

Illinois. — Sec.  536.  The  state  of  Illinois  is  divided  into  two 
districts,  which  shall  be  called  the  northern  and  southern  districts 
of  Illinois.  The  northern  district  includes  the  counties  of  Hender- 
son, Warren,  Knox,  Peoria,  AVoodford,  Livingston  and  Iroquois, 
as  they  existed  February  13,  18<j5,  with  all  the  counties  north  of 
them.     The  southern  district  includes  the  residue  of  said  state. 

Iowa. — Sec.  537  (abrogated  and  substituted  by  the  provisions  of 
the  act  of  Congress  of  July  20,  1882,  ch.  312,  sections  1  and  2  of 
which  provide  as  follows).  That  the  state  of  Iowa  be  and  the  same 
is  hereby  divided  into  two  judicial  districts,  in  manner  following,  to 
wit:  the  counties  of  Clinton,  Jones,  Linn,  Benton,  Black  Hawk, 
Grundy,  Hardin,  Hamilton,  Webster,  Calhoun,  Sac,  Ida,  Monona, 
and  all  the  counties  north  of  those  named,  shall  constitute  a  new 
district,  to  be  known  as  the  northern  district  of  Iowa.  The  re- 
mainino;  counties  of  the  state  shall  constitute  the  southern  district 
of  Iowa  ;  and  the  present  district  court  of  Iowa,  from  and  after  the 
passage  of  this  act,  shall  be  known  as  the  district  court  for  the 
southern  district  of  Iowa. 

Sec.  2.  That  the  present  judge  of  the  district  of  Iowa  is  hereby 
declared  to  be  the  district  judge  for  the  southern  district  of  Iowa; 
that  the  President  of  the  United  States  be  and  is  hereby  authorized 
and  directed,  by  and  with  the  advice  and  consent  of  the  Senate,  to 
appoint  a  district  judge  for  the  northern  district  of  Iowa. 

Michigan. — Sec.  588.  The  state  of  Michigan  is  divided  into 
two  districts,  which  shall  be  called  the  eastern  and  western  dis- 
tricts of  Michigan.    The  western  district  includes  the  territory  and 


FEDERAL   COURTS.  13 

waters  within  the  following  boundaries,  as  they  existed  February 
24,  1863,  namely  :  commencing  at  the  southwest  corner  of  Branch 
County,  in  said  state,  and  running  thence  north,  on  the  west  line 
of  Branch  and  Calhoun  Counties,  to  the  south  line  of  Barry 
County  ;  thence  east,  on  the  north  line  of  Calhoun  and  Jackson 
Counties,  to  the  southeast  corner  of  Eaton  County  ;  thence  north, 
on  the  east  boundary  of  Eaton  County,  to  the  south  line  of 
Clinton  County  ;  thence  west,  on  the  south  boundary  of  said 
county,  to  the  southwest  corner  thereof;  thence  north,  on  the 
west  boundary  of  Clinton  and  Gratiot  Counties,  to  the  southi 
boundary  of  Isabella  County;  thence  west,  on  its  south  boundary, 
to  the  southwest  corner  of  said  last-named  county  ;  thence  north, 
on  the  west  line  of  Isabella  and  Clare  Counties,  to  the  south 
boundary  of  Missaukee  Cour^ty  ;  thence  east,  on  its  south  bound- 
ary, to  the  southeast  corner  of  Missaukee  County  ;  thence  north, 
on  the  east  line  of  Missaukee,  Kalcasca  and  Antrim  Counties, 
to  the  south  boundary  of  Emmett  County  ;  thence  east,  to  the 
southeast  corner  of  Emmett  County  ;  thence  north,  on  the  east 
boundary  of  Emmett  County,  to  the  Straits  of  Mackinac  ;  thence 
north,  to  midway  across  said  straits  ;  thence  westerly,  in  a  direct 
line,  to  a  pbint  on  the  shore  of  Lake  Michigan  where  the  north 
boundary  of  Delta  County  reaches  Lake  Michigan  ;  thence  west, 
on  the  north  line  of  Delta  County,  to  the  northwest  corner  of 
said  Delta  County  ;  thence  south,  on  the  west  boundary  of  said 
county,  to  the  dividing-line  between  the  states  of  Michigan  and 
Wisconsin,  in  Green  Bay  ;  thence  northeasterly,  on  said  dividing- 
line,  into  Lake  Michigan  ;  and  thence  southerly,  through  Lake 
Michigan,  to  the  southwest  corner  of  the  state  of  Michigan,  on  a 
line  that  will  include  within  said  boundaries  the  waters  of  Lake 
Michigan  within  the  admiralty  jurisdiction  of  the  state  of  Michi- 
gan ;  thence  east,  on  the  south  boundary  of  the  state  of  Michigan, 
to  the  intersection  of  the  west  line  of  Hillsdale  County.  The  east- 
ern district  includes  all  the  territory  and  waters  of  said  state  not 
included  within  the  foregoing  boundaries. 

The  act  of  June  19,  1878,  cb.  32G,  §  1,  20  Stat.  175,  provides : 
That  the  counties  of  Chippewa,  Schoolcraft,  Marquette,  Houghton, 
Keweenaw,  Ontonagon,  Isle  Royale,  Baraga,  and  Mackinaw,  being 
and  including  all  that  portion  of  the  territory  and  waters  of  said 
eastern  district  lying  in  the  upper  peninsula  of  Michigan,  be  and 


14  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

the  same  are  hereby  detached  from  the  eastern  judicial  district  of 
Michigan  and  attached  to  the  western  judicial  district  of  said  state. 

The  act  of  June  19,  1878,  ch.  326,  §  2,  20  Stat.  175,  provides: 
That  for  the  trial  and  determination  of  all  causes  and  proceedings 
cognizable  and  triable  in  the  circuit  and  district  courts  of  the 
United  States  for  the  western  district  of  Michigan  as  bounded  and 
described  in  this  act,  the  said  district  shall  consist  of  two  divisions 
known  respectively  as  the  southern  and  northern  divisions  of  said 
district.  The  southern  division  shall  comprise  all  that  portion  of 
said  district  lying  and  being  in  the  lower  peninsula  of  said  state, 
and  the  northern  division  of  said  district  shall  comprise  all  the  ter- 
ritory and  waters  of  the  entire  upper  peninsula  of  said  state ;  and 
there  shall  be  two  regular  terms  of  the  circuit  and  district  courts 
begun  and  held  in  each  of  the  divisions  of  said  western  district 
annually. 

Mississippi. — Sec.  539.  The  state  of  Mississippi  is  divided 
into  two  districts,  which  shall  be  called  the  northern  and  southern 
districts  of  Mississippi.  _  The  northern  district  includes  the  counties 
of  Noxubee,  Winston,  Attala,  Carroll,  Bolivar,  Coahoma,  Tunica,  De 
Soto,  Marshall,  Tippah,  Tishemingo,  Itawamba,  Monroe,  Lowndes, 
Oktibbeha,  Choctaw,  Yalabusba,  Tallahatchee,  Panola,  La  Fayette, 
Pontotoc  and  Chickasaw,  as  they  existed  June  18,  1838.  The 
southern  district  includes  the  residue  of  said  state. 

Missouri. — Sec.  540  (as  amended  by  act  of  April  8,  1878, 
ch.  51,  20  Stat.  35).  The  state  of  Missouri  is  divided  into  two 
districts,  Avhich  shall  be  called  the  eastern  and  western  districts 
of  Missouri.  The  eastern  district  includes  the  counties  of  Schuy- 
ler, Adair,  Knox,  Shelby,  Monroe,  Pike,  Montgomery,  Gasconade, 
Franklin,  Washington,  Reynolds,  Shannon  and  Oregon,  as  they  ex- 
isted- January  1,  1857,  with  all  the  counties  east  of  them.  The 
western  district  includes  the  residue  of  said  state. 

The  act  of  January  21,  1879,  ch.  20,  §  1,  20  Stat.  263,  pro- 
vides :  The  western  district  of  Missouri  is  hereby  divided  into  two 
divisions,  which  shall  be  known  as  the  eastern  and  western  divisions 
of  the  western  district  of  Missouri.  The  western  division  shall  in- 
clude the  counties  of  Andrew,  Atchison,  Barton,  Bates,  Buchanan, 
Caldwell,  Carroll,  Cass,  Chariton,  Clay,  Clinton,  Daviess,  De  Kalb, 
Gentry,  Grundy,  Harrison,  Holt,  Jackson,  Jasper,  La  Fayette, 
Linn,  Livingstone,  Mercer,  Nodaway,  Platte,  Putnam,  Ray,  Saline. 


FEDERAL    COURTS.  15 

Sullivan,  Vernon  and  Worth  ;  and  a  term  of  the  district  court  luid 
circuit  court  of  the  United  States  for  said  district  shall  be  held 
therein  at  the  city  of  Kansas  on  the  third  Monday  in  May  and  the 
third  Monday  in  October  of  each  year.  The  remaining  counties 
embraced  in  said  district  shall  constitute  the  eastern  division  there- 
of, and  the  terms  of  the  district  and  circuit  courts  of  the  United 
States  for  said  district  shall  be  held  therein  at  the  times  and  place 
now  prescribed  by  law. 

New  York. — Sec.  541  (as  amended  by  act  of  February  18, 
1875,  ch.  80,  18  Stat.  310).  The  state  of  New  York  is  divided 
into  three  districts,  which  shall  be  called  the  northern,  eastern  and 
southern  districts  of  New  York.  The  northern  district  includes 
the  counties  of  Rensselaer,  Albany,  Schoharie  and  Delaware,  with 
all  the  counties  north  and  west  of  them.  The  eastern  district  in- 
cludes the  counties  of  Richmond,  Kings,  Queens  and  Suffolk,  with 
the  waters  thereof.  The  southern  district  includes  the  residue  of 
said  state,  with  the  waters  thereof. 

Sec.  542.  The  district  courts  of  the  southern  and  eastern  dis- 
tricts of  New  York  shall  have  concurrent  jurisdiction  over  the 
waters  within  the  counties  of  New  Y'^ork,  Kings,  Queens  and  Suf- 
folk, and  over  all  seizures  made  and  all  matters  done  in  such  waters ; 
and  all  processes  or  orders  issued  out  of  either  of  said  courts,  or 
by  any  judge  thereof,  shall  run  and  be  executed  in  any  part  of  the 
said  waters. 

North  Carolina. — Sec.  543.  The  state  of  North  Carolina 
is  divided  into  two  districts,  which  shall  be  called  the  eastern 
and  western  districts  of  North  Carolina.  The  western  district  in- 
cludes the  counties  of  Mecklenburg,  Cabarras,  Stanly,  Montgomery, 
Richmond,  Davie,  Davidson,  Randolph,  Guilford,  Rockingham, 
Stokes,  Forsyth,  Union,  Anson,  Caswell,  Person,  Alamance, 
Orange,  Chatham,  Moore,  Clay,  Cherokee,  Swain,  Macon,  Jackson, 
Graham,  Haywood,  Transylvania,  Henderson,  Buncombe,  Madison, 
Yancey,  Mitchell,  Watauga,  Ashe,  Alleghany,  Caldwell,  Burke, 
McDowell,  Rutherford,  Polk,  Cleveland,  Gaston,  Lincoln,  Catawba, 
Alexander,  Wilkes,  Surry,  Iredell,  Yadkin  and  Rowan,  and  all 
territory  embraced  therein  which  may  hereafter  be  erected  into  new 
counties.     The  eastern  district  includes  the  residue  of  said  state. 

Ohio. — Sec.  544  (as  amended  by  act  of  February  4,  1880,  ch. 
18,  §  1,  21  Stat.  63).     The  state  of  Ohio  is  divided  into  two  districts, 


16       FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

which  shall  be  called  the  northern  and  southern  districts  of  Ohio. 
The  southern  district  includes  the  counties  of  Belmont,  Guernsey, 
Muskingum,  Licking,  Franklin,  Madison,  Champaign,  Shelby  and 
iNIercer,  Union,  Delaware,  Morrow,  Knox,  Coshocton,  Harrison 
and  Jefferson,  as  they  existed  February  10,  1855,  with  all  the 
counties  south  of  them.  The  northern  district  includes  the  residue 
of  said  state. 

The  act  of  June  8,  1878,  ch.  169,  §  2,  20  Stat.  102,  provides: 
Said  northern  district  (of  Ohio)  shall  be,  and  hereby  is,  divided  into 
two  divisions,  to  be  known  as  the  eastern  and  western  divisions 
of  the  northern  district  of  Ohio.  The  western  division  shall  con- 
sist of  twenty-four  counties,  to  wit:  Williams,  Defiance,  Paulding, 
Van  Wert,  Mercer,  Auglaize,  Allen,  Putnam,  Henry,  Fulton, 
Lucas,  Wood,  Hancock,  Hardin,  Logan,  Union,  Delaware,  Marion, 
Wyandot,  Seneca,  Sandusky,  Ottawa,  Erie  and  Huron ;  and  the 
eastern  division  shall  consist  of  the  remaining  counties  in  said  dis- 
trict. But  no  additional  clerk  or  marshal  shall  be  appointed  in 
said  district. 

The  act  of  February  4,  1880,  ch.  18,  §  -3,  21  Stat.  64,  provides: 
Said  southern  district  (of  Ohio)  shall  be,  and  hereby  is,  divided  into 
two  divisions,  to  be  known  as  the  eastern  and  western  divisions 
of  the  southern  district  of  Ohio.  The  eastern  division  shall  consist 
of  twenty-nine  counties,  to  wit :  Union,  Delaware,  Morrow,  Knox, 
Coshocton,  Harrison,  Jeff"erson,  Madison,  Fayette,  Franklin,  Pick- 
away, Ross,  Pike.  Gallia,  Jackson,  Meigs,  Vinton,  Athens,  Hock- 
ing, Fairfield,  Licking,  Perry,  Muskingum,  Morgan,  Washington, 
Noble,  Monroe,  Belmont  and  Guernsey  ;  and  the  western  division 
shall  consist  of  the  remaining  counties  in  said  district.  But  no 
additional  clerk  or  marshal  shall  be  appointed  in  said  district. 

Pennsylvania. — aSVc.  545.  The  state  of  Pennsylvania  is  divided 
into  two  districts,  which  shall  be  called  the  eastern  and  western  dis- 
tricts of  Pennsylvania.  The  western  district  includes  the  counties 
of  Fayette,  Greene,  Washington,  Allegheny,  Westmoreland,  Somer- 
set, Bedford,  Huntingdon,  Centre,  Mifflin,,  Clearfield,  McKean, 
Potter,  Jefferson,  Cambria,  Indiana,  xVrmstrong,  Butler,  Beaver, 
Mercer,  Crawford,  Venango,  Erie,  Warren,  Susquehanna,  Bradford, 
Tioga,  Union,  Northumberland,  Columbia,  Luzerne  and  Lycoming, 
as  they  existed  April  20,  1818.  The  eastern  district  includes  the 
residue  of  said  state. 


FEDERAL    COURTS.  17 

South  Carolina. — Sec.  546.  The  state  of  South  Carolina  is 
divided  into  two  districts,  which  shall  be  called  the  eastern  and 
western  districts  of  the  district  of  South  Carolina.  The  western 
district  includes  the  counties  of  Lancaster,  Chester,  York,  Union, 
Spartansburgh,  Greenville,  Pendleton,  Abbeville,  Edgefield,  New- 
berry, Laurens  and  Fairfield,  as  thej  existed  February  21,  1823. 
The  eastern  district  includes  the  residue  of  said  state. 

Tennessee. — Sec.  547  (as  amended  by  the  act  of  June  11, 
.1880,  ch.  203,  §  1,  21  Stat.  175,  and  the  act  of  March  3,  1875, 
18  Stat.  480).  The  state  of  Tennessee  is  divided  into  three  districts, 
which  shall  be  called  the  eastern,  western  and  middle  districts  of 
Tennessee.  The  eastern  district  includes  the  counties  of  Ander- 
son, Bledsoe,  Blount,  Bradley,  Campbell,  Carter,  Claiborne,  Cocke, 
Cumberland,  Grainger,  Greene,  Hamilton,  Hancock,  Hawkins, 
Jefferson,  Johnson,  Knox,  McMinn,  Marion,  Meigs,  Monroe,  Mor- 
gan, Polk,  Rhea,  Roane,  Scott,  Sevier,  Sullivan,  Union,  and  Wash- 
ington, Grundy,  as  they  existed  February  19,  1856.  The  west- 
ern district  includes  the  counties  of  Benton,  Carroll,  Henry,  Obion, 
Dyer,  Gibson,  Lauderdale,  Haywood,  Tip; on,  Shelby,  Fayette, 
Hardeman,  McNairy,  Hardin,  Madison,  Henderson  and  Weakley, 
as  they  existed  June  18,  1838.  The  middle  district  includes  the 
residue  of  said  state. 

The  act  of  June  11,  1880,  ch.  203,  §  3,  21  Stat.  175,  provides: 
Said  eastern  district  (of  Tennessee)  shall  be  and  hereby  is  divided 
into  two  divisions,  to  be  known  as  the  northern  and  southern  divis- 
ions of  the  eastern  district  of  Tennessee.  The  southern  division 
shall  consist  of  the  following  counties,  to  wit :  Hamilton,  James, 
Polk,  McMinn,  Bradley,  Meigs,  Rhea,  Marion,  Sequatchie,  Bledsoe, 
Grundy  and  Cumberland,  and  the  northern  division  shall  consist 
of  the  remaining  counties  in  said  district.  But  no  additional 
clerk  or  marshal  shall  be  appointed  in  said  district. 

The  act  of  June  20,  1878,  ch.  t59,  §  1,  20  Stat.  235,  pro- 
vides:  The  western  district  of  Tennessee  is  hereby  divided  into 
two  divisions,  which  shall  be  known  as  the  eastern  and  western 
divisions  thereof.  The  eastern  division  shall  include  the  counties 
of  Benton,  Carroll,  Decatur,  Gibson,  Henderson,  Henry,  Madison, 
McNairy,  Hardin,  Dyer,  Lake,  Crockett,  Weakley  and  Obion,  and 
terms  of  the  circuit  and  district  courts  of  the  United  States  for 
said  district  shall  be  held  therein  at  the  town  of  Jackson,  in  the 
2 


18       FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

county  of  Madison,  at  least  twice  in  each  year  at  such  times  as  the 
judges  thereof  shall  respectively  fix,  whenever  the  authorities  of 
said  county  or  town  shall  provide  suitable  buildings  therefor  free  of 
any  expense  to  the  United  States.  The  remaining  counties  em- 
braced in  said  district  shall  constitute  the  western  division  thereof, 
and  terms  of  the  district  and  circuit  courts  of  the  United  States 
for  said  district  shall  be  held  therein  at  the  times  and  place  now 
prescribed  by  law. 

Texas. — Sec.  548  (as  amended  and  substituted  by  act  of 
February  24,  1879,  ch.  97,  §§  1,  2,  3,  20  Stat.  318,  and  by 
the  act  of  June  11,  1879,  ch.  18,  §  1,  21  Stat.  10;  and  by  the 
act  of  June  14,  1880,  ch.  213,  §  2,  21  Stat.  108)  provides:  That 
a  judicial  district  is  hereby  created  in  the  state  of  Texas,  to  be 
called  the  northern  judicial  district  of  said  state,  and  the  territory 
embraced  in  the  following  named  counties,  as  now  constituted, 
shall  compose  said  district,  namely:  Brazos,  Robertson,  Leon, 
Limestone,  Freestone,  Navarro,  Ellis,  Kaufman,  Dallas,  Rockwall, 
Hunt,  Fannin,  Lamar,  -Delta,  Collins,  Grayson,  Cooke,  Denton, 
Tarrant,  Johnson,  Hill,  McLennan,  Falls,  Bell,  Coryell,  Hamilton, 
Bosque,  Comanche,  Erath,  Somerville,  Hood,  Parker,  Palo  Pinto, 
Jack,  Wise,  Montague,  Clay,  Archer,  Wichita,  Wilbarger,  Harde- 
man, Knox,  Baylor,  Haskell,  Throckmorton,  Young,  Stephens, 
Shackelford,  Jones,  Taylor,  Callahan,  Eastland,  Brown,  Coleman, 
Runnells,  Greer,  Nolan,  Fisher,  Stonewall,  King,  Cottle,  Childress, 
Collingsworth,  Wheeler,  Hemphill,  Lipscomb,  Ochiltree,  Roberts, 
Gray,  Donley,  Hall,  Motley,  Dickens,  Kent,  Scurry,  Mitchell, 
Howard,  Borden,  Dawson,  Gaines,  Martin,  Andrews,  Garza, 
Crosby,  Floyd,  Briscoe,  Armstrong,  Carson,  Hutchinson,  Hansford, 
Sherman,  Moore,  Potter,  Randall,  Swisher,  llale,  Lubbock,  Lynn, 
Terry,  Hockley,  Lamb,  Castro,  Deaf  Smith,  Oldham,  Hartley, 
Dallam,  Palmer,  Bailey,  Cochran  and  Yoakum. 

That  the  territory  embraced  in  the  following  named  counties,  as 
now  constituted,  shall  compose  the  eastern  judicial  district,  namely  : 
Jackson,  Matagorda,  Wharton,  Brazoria,  Fort  Bend,  Colorado, 
Austin,  Waller,  Harris,  Galveston,  Chambers,  Jefferson,  Orange, 
Hardin,  Liberty,  Newton,  Jasper,  Tyler,  Polk,  San  Jacinto,  Mont- 
gomery, Walker,  Grimes,  Madison,  Trinity,  Angelina,  San  Au- 
gustine, Sabine,  Shelby,  Nacogdoches,  Cherokee,  Houston,  An- 
derson, Henderson,  Smith,  Rusk,  Panola,  Harrison,  Gregg,  Up- 


FEDERAL    COURT?.  l'.» 

shur,   Wood,   Vanzandt,    Rains,    Hopkins,    Camp,    Titus,    Marion, 
Cass,  Bowie,  Franklin,  Morris  and  Red  River. 

That  the  territory  embraced  in  the  following  named  counties,  as 
now  constituted,  shall  compose  the  western  judicial  district  of  said 
state,  namely,  Calhoun,  Victoria,  Goliad,  Refugio,  Bee,  San  Patri- 
cio, Nueces,  Cameron,  Hidalgo,  Starr,  Zapata,  Duval,  Encinal, 
Webb,  La  Salle,  McMullin,  Live  Oak,  De  Witt,  Lavaca,  Gonzales, 
Wilson,  Karnes,  Atascosa,  Frio,  Dimmit,  Zavala,  Maverick,  Din- 
ney,  Uvalde,  Medina,  Bexar,  Guadalupe,  Caldwell,  Fayette,  Wash- 
ington, Lee,  Burleson,  Milan,  Williamson,  Bastrop,  Travis,  Hays, 
Comal,  Kendall,  Blanco,  Burnett,  Llano,  Gillespie,  Kerr,  Bandera, 
Edwards,  Kimball,  Mason,  Menard,  El  Paso,  Presidio,  Tom  Green, 
Crockett,  Pecos,  Concho,  McCulloch,  San  Saba  and  Lampasas,  and 
Aransas. 

Virginia. — Sec.  549.  The  state  of  Virginia  is  divided  into  two 
districts,  Avhich  shall  be  called  the  eastern  and  western  districts  of 
Virginia.  The  western  district  includes  the  counties  of  Albemarle, 
Alleghany,  Amherst,  Appomattox,  Augusta,  Bath,  Bedford,  Bland, 
Botetourt,  Buchanan,  Buckingham,  Campbell,  Carroll,  Charlotte, 
Clarke,  Craig,  Cumberland,  Floyd,  Franklin,  Frederick,  Fluvanna, 
Giles,  Grayson,  Greene,  Halifax,  Henry,  Highland,  Lee,  Madison, 
Montgomery,  Nelson,  Patrick,  Page,  Pulaski,  Pittsylvania,  Rappa- 
hannock, Roanoke,  Rockbridge,  Rockingham,  Russell,  Scott, 
Smyth,  Shenandoah,  Tazewell,  Washington,  Wise,  Wythe  and 
Warren.     The  eastern  district  includes  the  residue  of  said  state. 

Wisconsin. — Sec.  550.  The  state  of  Wisconsin  is  divided 
into  two  districts,  which  shall  be  called  the  eastern  and  western 
districts  of  Wisconsin^  The  Avestern  district  includes  the  counties 
of  Rock,  Jefferson,  Dane,  Green,  Grant,  Columbia,  Iowa,  La  Fay- 
ette, Sauk,  Richland,  Crawford,  Vernon,  La  Crosse,  Monroe, 
Adams,  Juneau,  Buffalo,  Chippewa,  Dunn,  Clarke,  Jackson,  Eau 
Claire,  Pepin,  Marathon,  Wood,  Pierce,  Polk,  Portage,  Saint  Croix, 
Trempealeau,  Douglas,  Barron,  Burnett,  Ashland  and  Bayfield. 
The  eastern  district  includes  the  residue  of  said  state. 


CHAPTER  III. 

ORGANIZATION    OF    DISTRICT    COURTS. 

§  10.  Provisions  of  the  statutes  providing  for  the  organization  of 
district  courts. — The  Statutes  providing  for  the  constitution  and 
organization  of  district  courts  are  as  follows : 

District  judges,  appointment  and  residence. — Sec.  551.  A 
district  judge  shall  be  appointed  for  each  district,  except  in  the 
cases  hereinafter  provided.  Every  such  judge  shall  reside  in  the 
district  for  which  he  is  appointed,  and  for  offending  against  this 
provision  shall  be  deemed  guilty  of  a  high  misdemeanor. 

Colorado.— The  act  of  June  26,  1876,  ch.  147,  §  1,  19  Stat.  61, 
provides :  And  for  said  district  (of  Colorado)  a  district  judge,  and  a 
marshal,  and  a  district  attorney  of  the  United  States  shall  be  ap- 
pointed by  the  President,  by  and  with  the  advice  and  consent  of  the 
Senate,  with  the  same  rights,  powers  and  duties  provided  by  law  for 
similar  officers  in  the  other  states,  except  as  herein  otherwise  provided. 

An  act  of  June  26,  1876,  ch.  147,  §  2,  19  Stat.  61,  provides: 
That  the  circuit  and  district  courts  for  the  district  of  Colorado,  and 
the  judges  thereof,  respectively,  shall  possess  the  same  powers  and 
jurisdiction,  and  perform  the  same  duties  possessed  and  required 
to  be  performed  by  the  other  circuit  and  district  courts  and  judges 
of  the  United  States,  and  shall  be  governed  by  the  same  laws  and 
regulations. 

Texas.— An  act  of  February  24,  1879,  ch.  98,  §  7,  20  Stat.  320, 
provides:  Thatthe  present  judgeoftheeastern  district  of  Texas  be  and 
he  is  hereby  assigned  to  hold  said  courts  in  the  said  eastern  district, 
and  shall  exercise  the  same  jurisdiction  and  perform  the  same  duties 
Avithin  the  said  district  as  he  now  exercises  and  performs  within  his 
present  district.  That  the  present  judge  of  the  western  district  of 
Texas  be  and  he  is  hereby  assigned  to  hold  said  courts  in  the  west- 
ern district  of  Texas,  and  shall  exercise  the  same  jurisdiction  and 
perform  the  same  duties  within  the  said  district  as  he  now  exercises 
and  performs  within  his  present  district.  And  there  shall  be  ap- 
pointed a  district  judge  for  the  northern  district  of  Texas,  who  shall 
possess  the  same  powers  and  do  and  perform  all  such  duties  in  his 


ORGANIZATION    OF    DISTRICT   COURTS.  21 

district  as  are  now  enjoyed  or  in  any  manner  appertain  to  the 
present  district  jmlges  for  said  eastern  and  western  districts  of 
Texas.  And  the  district  judge  of  such  district  shall  be  entitled  to 
the  same  compensation  as  by  law  is  provided  for  the  present  judges 
of  the  eastern  and  western  districts  of  Texas. 

Judges  in  various  states  to  be  appointed. — Sec.  552.  There 
shall  be  appointed  in  each  of  the  states  of  Alabama,  Georgia,  Mis- 
sissippi, South  Carolina  and  Tennessee,  one  district  judge,  who 
shall  be  district  judge  for  each  of  the  districts  included  in  the  state 
for  which  he  is  appointed,  and  shall  reside  within  some  one  of  the 
said  districts.  And  for  offending  against  this  provision  such  judges 
shall  be  liable  as  in  the  preceding  section. 

An  act  of  June  14,  1878,  ch.  196,  §  1,  20  Stat.  132,  provides: 
That  there  shall  be  appointed  by  the  President  of  the  United 
States,  by  and  with  the  advice  and  consent  of  the  Senate,  a  district 
judge  for  the  western  district  of  Tennessee,  who  shall  from  and 
after  the  time  of  his  appointment  hold  the  terms  of  the  United 
States  district  court  in  said  district  at  the  times  and  places  re- 
quired by  law. 

An  act  of  June  14,  1878,  ch.  196,  §  3,  20  Stat.  132,  provides : 
The  present  district  judge  of  said  state  (Tennessee)  shall  be  and 
remain  the  district  judge  of  the  United  States  for  the  middle  and 
eastern  districts  thereof,  as  if  originally  appointed  thereto. 

Sec.  553.  The  district  judge  for  the  southern  district  of  Florida 
shall  reside  at  Key  West. 

Salaries  of  district  judges. — Sec.  554.  District  judges  are 
entitled  to  receive  yearly  salaries  at  the  following  rates,  payable 
quarterly  from  the  treasury :  the  judge  of  the  district  of  Califor- 
nia, five  thousand  dollars;  the  judge  of  the  district  of  Louisiana, 
four  thousand  five  hundred  dollars ;  the  judges  of  the  district 
of  Massachusetts,  the  northern,  southern  and  eastern  districts  of 
New  York,  the  eastern  and  western  districts  of  Pennsylvania,  the 
district  of  New  Jersey,  the  district  of  Maryland,  the  southern 
district  of  Ohio,  and  the  northern  district  of  Illinois,  four  thousand 
dollars.  The  judges  of  all  other  districts,  three  thousand  five 
hundred  dollars.  No  other  allowance  or  payment  shall  be  made  to 
them  for  travel,  expenses  or  otherwise.     [See  §§  597,  613.] 

The  act  of  June  26,  1876,  ch.  147,  §  3,  19  Stat.  61,  provides  : 
That  the  district  judge  appointed  for  the  district  of  Colorado  shall 


oo 


FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 


receive  as  bis  compensation  the  sum  of  three  thousand  five  hundred 
dollars  a  year,  payable  in  four  equal  installments  on  the  first  days 
of  January,  April,  July  and  October  of  each  year. 

An  act  of  June  14,  1878,  ch.  196,  §  2,  20  Stat.  132,  provides  : 
Said  district  judge  (for  the  western  district  of  Tennessee)  shall  be 
paid  the  same  salary  and  in  the  same  manner  as  the  judge  of  the 
middle  and  eastern  districts  of  Tennessee,  and  shall  exercise  all  the 
circuit  and  district  court  power  and  jurisdiction  now  conferred  on 
said  judge  and  said  court. 

Clerks. — Sex.  555.  A  clerk  shall  be  appointed  for  each  district 
court  by  the  judge  thereof,  except  in  cases  otherwise  provided  for 
by  law. 

'  An  act  of  February  24,  1879,  ch.  98,  §  9,  20  Stat.  320,  provides  : 
The  district  judge  of  tiie  northern  district  (of  Texas)  shall  ap- 
point a  clerk  of  said  court,  who  shall  reside  at  one  of  the  places 
designated  in  this  act  for  holding  the  courts ;  and  two  deputies 
shall  be  appointed  by  the  clerk,  one  of  whom  shall  reside  at  each  of 
the  other  places  designated  for  holding  the  courts. 

An  act  of  June  26,  1876,  §  4,  19  Stat.  62,  provides  :  That  the 
marshal,  district  attorney  and  clerk  of  the  circuit  and  district 
courts  of  said  district  of  Colorado,  and  all  other  officers  and 
persons  performing  duties  in  the  administration  of  justice  therein, 
shall  severally  possess  the  powers  and  perform  the  duties  lawfully 
possessed  and  required  to  be  performed  by  similar  officers  in 
other  districts  of  the  United  States,  and  shall  for  the  services 
they  may  perform  receive  the  fees  and  compensation  allowed 
to  other  similar  officers  and  persons  performing  similar  duties,  by 
the  laws  of  the  United  States,  excepting  such  provisions  thereof  as 
are  specially  applicable  to  some  particular  officer  or  district. 

Arkansas. — Sec.  556  (as  amended  by  act  of  January  31,  1877, 
ch.  41,  19  Stat.  230).  In  the  eastern  district  of  Arkansas  there 
shall  be  appointed  two  clerks  of  the  district  court  thereof,  one  of 
whom  shall  reside  and  keep  his  office  at  Little  Rock,  and  the  other 
shall  reside  and  keep  his  office  at  Helena. 

Kentucky  ;  clerks. — Sec.  557.  In  the  district  of  Kentucky  a 
clerk  of  the  district  court  shall  be  appointed  at  each  place  of 
holding  the  court,  in  the  same  manner  and  subject  to  the  same 
duties  and  responsibilities  which  are  or  may  be  provided  concern- 
ing clerks  in  independent  districts. 


ORGANIZATION    OF    DISTRICT    COURTS.  28 

Deputy  clerks. — Sec.  55S,  One  or  more  deputies  of  any  clerk 
of  a  district  court  may  be  appointed  by  the  court,  on  the  ap- 
plication of  the  clerk,  and  may  be  removed  at  the  pleasure  of 
judges  authorized  to  make  the  appointment.  In  case  of  the  death 
of  the  clerk,  his  deputy  or  deputies  shall,  unless  removed,  continue 
in  office  and  perform  the  duties  of  the  clerk,  in  his  name,  until  a 
clerk  is  appointed  and  qualified  ;  and  for  the  default  or  misfeasances 
in  office  of  any  such  deputy,  whether  in  the  life-time  of  the  clerk  or 
after  his  death,  the  clerk,  and  his  estate,  and  the  sureties  in  his  offi- 
cial bond,  shall  be  liable;  and  his  executor  or  administrator  shall 
have  such  remedy  for  any  such  default  or  misfeasances  committed 
after  his  death  as  the  clerk  would  be  entitled  to  if  the  same  had  oc- 
curred in  his  life-time. 

Deputy  clerks  in  Indiana. — Sec.  559.  In  the  district  of 
Indiana  the  clerk  of  the  district  court  must  appoint  a  deputy 
clerk  for  said  court  held  at  New  Albany,  and  a  deputy  clerk  for  said 
court  held  at  Evansville,  who  shall  reside  and  keep  their  offices  ac 
said  places  respectively.  Each  deputy  shall  keep  in  his  office  full 
records  of  all  actions  and  proceedings  in  the  district  court  held  at 
the  same  place,  and  shall  have  the  same  power  to  issue  all  process 
from  the  said  court  that  is  or  may  be  given  to  the  clerks  of  other 
district  courts  in  like  cases. 

An  act  of  March  3,  1879,  ch.  182,  §  2,  20  Stat.  399,  provides  : 
That  the  clerk  of  the  district  court  and  the  clerk  of  the  circuit 
court  for  the  district  of  Indiana,  and  the  marshal  and  the' district 
attorney  for  said  district,  shall  perform  the  duties  appertaining  to 
their  offices  respectively  for  said  courts  ;  and  the  clerks  of  said  courts 
and  the  marshal  shall  appoint  deputies  to  reside  and  keep  their  offi- 
ces at  Fort  Wayne,  and  who  shall,  in  the  absence  of  their  princi- 
pals, do  and  perform  all  the  duties  appertaining  to  their  said  offices 
respectively. 

District  of  Iowa. — Sec.  560  (as  amended  by  act  of  July  20, 
1882).  There  shall  be  appointed  by  the  judge  of  the  northern 
district  of  Iowa,  with  the  approval  of  the  circuit  judge  of  the  eighth 
judicial  circuit,  a  clerk  for  the  district  and  circuit  courts  in  and  for 
the  northern  district  of  Iowa.  The  persons  now  acting  as  clerks  for 
the  district  of  Iowa  shall  be  the  clerks  for  the  southern  district  of  Iowa. 

District  of  Kansas  ;  clerks,  marshals  and  district  attor- 
ney.—An    act   of  March   3,  i879,  ch.  177,  §  2,  20  Stat.    355, 


24  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

provides :  That  the  clerk  of  the  district  court  for  the  district  of 
Kansas,  the  marshal  and  district  attorney  for  said  district,  shall 
perform  the  duties  pertaining  to  their  oiBces  respectively  for  said 
courts;  and  said  clerk  and  marshal  shall  appoint  a  deputy  to  reside 
and  keep  their  offices  at  Fort  Scott,  and  who  shall,  in  the  absence  of 
their  principals,  do  and  perform  all  the  duties  appertaining  to  their 
said  offices  respectively. 

Clerk  of  the  western  district  of  Michigan;  deputy. — 
The  act  of  June  19,  1878,  ch.  326,  §  4,  20  Stat.  17u,  provides: 
The  clerk  of  the  circuit  and  district  courts  for  the  western  district 
of  Michigan  shall  reside  and  keep  his  office  at  Grand  Rapids,  and 
shall  also  appoint  a  deputy  clerk  for  said  courts  held  at  Marquette, 
who  shall  reside  and  keep  his  office  at  that  place ;  and  said  deputy 
clerk  shall  keep  in  his  office  full  records  of  all  actions  and  proceed- 
ings in  the  said  circuit  and  district  courts  for  the  northern  division 
of  said  district,  held  at  that  place,  and  shall  have  the  same  power 
to  issue  all  processes  from  the  said  courts,  and  perform  any  other 
duty  that  is  or  may  he"  given  to  the  clerks  of  other  circuit  and 
district  courts  in  like  cases. 

Clerks  in  western  district  of  Missouri. — An  act  of  Janu- 
ary 21,  1879,  ch.  20,  §  4,  20  Stat.  263,  provides :  The  clerks  of 
the  circuit  and  district  courts  for  said  district  (western  district  of 
Missouri)  shall  each  appoint  a  deputy  clerk  at  the  place  where  their 
respective  courts  are  required  to  be  held  in  the  division  of  the 
district  in  which  such  clerk  shall  not  himself  reside,  each  of  whom 
shall,  in  the  absence  of  the  clerk,  exercise  all  the  powers  and  per- 
form all  the  duties  of  clerk  within  the  division  for  which  he  shall 
be  appointed;  provided,  that  the  appointment  of  such  deputies 
shall  be  approved  by  the  court  for  which  they  shall  be  respectively 
appointed,  and  may  be  annulled  by  such  court  at  its  pleasure ;  and 
the  clerk  shall  be  responsible  for  the  official  acts  and  neglects  of  all 
such  deputies. 

Clerks  in  western  district  of  Tennessee. — An  act  of  June 
20,  1878,  ch.  359,  §  1,  20  Stat.  236,  provides  :  The  clerks  of  the 
circuit  and  district  courts  for  said  district  (western  district  of 
Tennessee)  shall  each  appoint  a  deputy  of  their  respective  courts 
at  the  place  in  the  eastern  division  of  said  district  where  their  said 
courts  are  required  to  be  held,  who  shall,  in  the  absence  of  the 
clerk,  exercise  all  the  powers  and  perform  all  the   duties  of  clerk 


ORGANIZATION    OF    DISTRICT   COURTS.  25 

within  said  division  ;  provided,  that  the  appointments  of  such  depu- 
ties shall  be  approved  by  the  court  for  which  they  shall  be  respec- 
tively appointed,  and  may  be  annulled  by  such  court  at  its  pleasure. 
The  marshal  of  said  district  shall  also  appoint  a  deputy  for  said 
eastern  division,  who  shall  reside  therein,  and  in  the  absence  of 
the  marshal  perform  all  the  duties  devolved  upon  the  marshal  by 
law. 

Compensation  of  deputy  clerks. — Sec.  661.  The  compensa- 
tion of  deputies  of  the  clerks  of  the  district  courts  shall  be  paid 
by  the  clerks,  respectively,  and  allowed  in  the  same  manner  that 
other  expenses  of  the  clerks'  offices  are  paid  and  allowed. 

Records,  where  kept. — Sec.  562.  The  records  of  a  district 
court  shall  be  kept  at  the  place  where  the  court  is  held.  When  it 
is  held  at  more  than  one  place  in  any  district,  and  the  place  of 
keeping  the  records  is  not  specially  provided  by  law,  they  shall  be 
kept  at  either  of  the  places  of  holding  the  court  which  may  be 
designated  by  the  district  judge. 

§  11.  Salary  of  judges. — The  Constitution  provides  that  the  judges 
shall  hold  their  offices  during  good  behavior,  and  that  they  shall,  at 
stated  times,  receive  for  their  services  a  compensation  which  shall 
not  be  diminished  during  their  continuance  in  office.^  And  the 
statutes  provide  that  when  any  judge  of  any  court  of  the  United 
States  resigns  his  office,  after  having  held  his  commission  as  such 
at  least  ten  years,  and  having  attained  the  age  of  seventy  years,  he 
shall  during  the  residue  of  his  natural  life  receive  the  same  salary 
which  was  by  law  payable  to  him  at  the  time  of  his  resignation.^ 

§  12.  Judges  prohibited  from  practicing  law. — Another  wise  pro- 
vision of  the  statutes  prohibits  any  federal  judge  from  exercising 
the  profession  or  employment  of  counsel  or  attorney,  or  engaging 
in  the  practice  of  the  law,  making  the  offender  guilty  of  a  high  mis- 
demeanor.^ 

§  13.  Appointment  of  clerks  ;  official  bonds. — The  judges  of  the 
several  districts  have  the  power,  and  it  is  their  duty,  to  appoint  a 
clerk  in  each  district,  except  where  otherwise  provided  by  statute ;  * 
and  the  statute  provides  that  in  some  districts  they  may  appoint  more 
than  one.^     He  is  required  to  take  an  oath  for  the  faithful  perform- 

^  Const,  art.  3.  ?  1.  *  Rev.  Stat.  |  555. 

^  Rev.  Stat.  §  714.  6  Rev.  Stat.  U  556,  557. 

^'Rev.  Stat.  ^1V6. 


26       FEDERAL  PLEADING,  PUACTICE  AND  PROCEDURE. 

ance  of  his  duty/  and  also  to  give  an  official  bond,  in  a  sum  to  be 
fixed  by  the  judge  who  appoints  him,  for  the  faithful  discharge  of 
the  duties  of  the  office;  and  a  new  bond  may  be  required  whenever 
the  court  deems  it  proper  for  a  new  one  to  be  given.  It  is  further 
lequired  that  such  bonds  be  entered  upon  the  journal  of  the  court 
for  which  he  is  nppointed,  and  deposited  for  safe  keeping  in  such 
place  as  the  court  may  direct;  and  a  certified  copy  of  such  entry 
on  the  journal  is  made  prima  facie  proof  of  the  execution  of  such 
bond  and  of  the  contents  thereof.^ 

§  14.  Duties  of  clerks. — Besides  various  minor  and  special  duties 
required  to  be  performed  by  the  clerk,  his  general  duties  more  par- 
ticularly demand  that  he  faithfully  enter  and  record  all  the  orders, 
decrees,  judgments  and  proceedings  of  the  court;  and  the  official 
oath  required  of  him  provides  that  he  will  faithfully  perform  this 
duty  as  well  as  impartially  discharge  and  perform  all  the  duties  of 
his  office  according  to  the  best  of  his  ability  and  understanding.' 

§  15.  Compensation  of  clerks. — Section  828  of  the  Revised  Stat- 
utes provides  in  detail  for  fees  to  be  charged  by  the  clerk  for  the 
various  services  he  is  required  to  perform  ;*  and  section  833  requires 
him  semi-annually  to  make  a  written  return  to  the  Attorney-General, 
for  the  preceding  half  year,  of  all  the  fees  and  emoluments  of  his 
office,  and  of  all  the  expenses  of  the  office,  including  necessary 
clerk-hire,  together  with  the  vouchers  for  the  payment  of  the  same 
for  such  last  half  year,  which  return  must  be  verified  by  oath,^ 
But  no  clerk  of  a  district  or  circuit  court  shall  be  allowed  by 
the  Attorney-General  to  retain  of  the  fees  and  emoluments  of  his 
office,  for  his  personal  compensation,  a  sum  exceeding  three  thousand 
five  hundred  dollars  a  year,  or  at  that  rate  f  )r  a  shorter  length  of 
time,  unless  both  clerkships  are  held  by  the  same  person, •*  except  in 
California,  Oregon  and  Nevada,  where  they  are  allowed  to  charge 
double  the  ordinary  fees  allowed  clerks,  and  they  are  allowed  to 
retain  of  the  fees  received  by  them  for  their  personal  services  an 
amount  not  exceeding  seven  thousand  dollars  a  year,  or  at  that  rate 
for  a  shorter  time; '^  and  the  allowance  for  personal  compensation 
of  clerks  for  each  year  must  be  made  from  the  fees  and  emoluments 
of  that  year;^  but  in  prize  causes  they  may  retain  for  official  serv- 

•  Rev.  Stat,  'i  794.  ^  Rev.  Stat.  |  839. 

''  Rev.  Stat.  ^  79o.  «  See  post,  |  578  ;  Rev.  Stat.  ^  839. 

■  Rev.  Stat.  I  794,  ''  Rev.  Stat,  g  840. 

*  Rev.  Stat.  ?^  834.  8  i^^y^  gtat.  |  843. 


ORGANIZATION    OF    DISTRICT    COURTS.  27 

ices  an  additional  compensation  not  exceeding  in  amount  one- 
half  of  the  maximum  compensation  allowed  them  as  aforesaid.^ 
It  is  made  the  duty  of  the  clerk,  at  the  time  of  making  his  semi- 
annual return,  to  pay  into  the  treasury  of  the  United  States,  or 
deposit  to  the  credit  of  the  Treasurer,  as  may  be  directed  by  the 
Attorney-General,  any  surplus  of  the  fees  and  emoluments  of  his 
office  which  the  return  shows  to  exist  over  and  above  the  compen- 
sation allowed  as  aforesaid,  except  for  the  necessary  expenses  of 
his  office,  including  necessary  clerk-hire,  to  be  audited  and  allowed 
by  the  proper  accounting  officers  of  the  treasury.^  It  is  further 
required  that  the  accounts  of  the  clerk  shall  be  examined  and  cer- 
tified by  the  district  judge  of  the  district  for  which  they  are  ap- 
pointed, before  they  are  presented  to  the  accounting  officers  of  the 
Treasury  Department  for  settlement.^ 

§  16.  Commissions  for  receiving  and  paying  out  money. — Ihe 
clerk,  under  the  provisions  of  the  statutes,  is  entitled  to  a  commis- 
sion for  receiving,  keeping  and  paying  out  moneys  obtained  by 
fines,  penalties  or  forfeitures  under  the  revenue  laws.*  But  he  is 
not  entitled  to  a  commission  on  money  received  by  a  commissioner 
and  paid  out  by  him  in  proceedings  in  bankruptcy.^ 

§  17.  Appointment  of  deputy  clerks. — Under  the  provisions  of 
section  558  of  the  Revised  Statutes,  providing  for  the  appointment 
of  deputy  clerks  by  the  court,  it  has  been  held  that  a  deputy  thus 
appointed  may  do  any  act  which  the  clerk  is  authorized  by  law  to 
do.  He  may  sign  a  warrant,  citation  or  monition,  and  do  every 
act  which  the  principal  may  do.^ 

§  18.  Official  bond  of  deputy  clerks. — Any  circuit  or  district 
court  may  require  any  deputy  clerk  thereof  to  give  a  bond  to  the 
United  States  for  the  faithful  discharge  of  his  duty  as  such  deputy, 
in  the  same  penalty,  and  with  surety  in  the  same  manner,  as  is  re- 
quired by  law  of  clerks  ;  and  it  is  required  that  such  bond  be  recorded 
and  preserved  in  like  manner.  The  taking  of  this  bond,  however, 
does  not  affect  the  legal  responsibility  of  the  clerk  also  for  the 
official  acts  of  the  deputy." 

'  Rev.  Stat.  |  842.  *  United  States  v.  One  Horse,  7  Ben. 

*  Rev.  Stat.  U  833,  839,  844.  405.     See  also  The  Avery,  2  Gallis. 

*  Rev.   Stat.    ^  846 ;    also  Amend-     308. 

nient,  February  18,  1875.  «  The  Confiscation  Cases,  20  Wall. 

*  In  re  Goodrich,  4  Dill.  230 ;  Up-     92 ;  Brajr^'  v.  Lorio,  1  Woods  209. 
ton  V.  Triblecock,  4  Dill.  232.  ''  Rev.  Stat.  ^  790. 


2.8  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

§  19.  Marshals  and  their  deputies. — It  is  essential  to  the  proper 
discharge  of  the  functions  of  courts  that  they  have  some  executive 
officer  for  the  service  of  process  and  the  execution  of  their  judg- 
ments. For  this  purpose  it  is  provided  by  statute  that  "  a  marshal 
shall  be  appointed  in  each  district,  except  in  the  middle  district  of 
Alabama,  and  the  northern  district  of  Georgia,  and  the  western 
district  of  South  Carolina  ;"  and  that  he  shall  hold  his  oSice  for  the 
term  of  four  years. ^  The  marshal  of  the  southern  district  of  Ala- 
bama is  required  to  perform  the  duties  of  marshal  in  the  middle 
district  of  said  state,  and  to  keep  an  office  at  Montgomery,  in  the 
middle  district.  The  marshal  of  the  southern  district  of  Georgia  is 
required  to  perform  the  duties  of  marshal  in  the  northern  district 
of  that  state,  and  to  keep  an  office  at  Marietta,  in  said  district ; 
and  the  marshal  of  the  eastern  district  of  South  Carolina  is  required 
to  perform  the  duties  of  marshal  in  the  western  district  of  that 
state  ;^  and  the  marshal  of  the  district  of  Iowa  is  required  to  per- 
form all  the  duties  of  that  officer  in  all  the  four  divisions  of  the 
district.^  And  it  is  further  provided  that  every  marshal  may  ap- 
point one  or  more  deputies,  who  shall  be  removable  from  office  by 
the  judge  of  the  district  court,  or  by  the  circuit  court  of  the  dis- 
trict, at  the  pleasure  of  either.* 

§  20.  Official  oaths  of  marshals  and  their  deputies. — It  is  the  duty 
of  every  marshal  and  deputy  marshal,  before  he  enters  upon  the 
duties  of  the  office,  to  take  an  oath  to  faithfully  execute  the  duties 
of  the  office,  the  form  of  which,  and  the  parties  before  whom  it  may 
be  taken,  being  particularly  pointed  out  in  section  782  of  the  Re- 
vised Statutes.^ 

§  21.  Marshals'  fees  and  salaries. — Section  829  of  the  Revised 
Statutes  provides  particularly  for  the  fees  for  services  rendered  by 
marshals,  and  in  addition  thereto  they  are  entitled  to  receive  salaries 
for  extra  services  in  certain  districts. 

In  the  district  of  California  the  marshal  is  entitled,  in  addi- 
tion to  his  fees,  to  a  salary  at  the  rate  of  five  hundred  dollars  a 
year  ;  in  the  district  of  North  Carolina,  at  the  rate  of  four  hundred 
dollars  a  year ;  and  the  marshal  of  all  other  districts,  at  the  rate  of 
two  hundred  dollars  a  year,  except  in  the  southern  and  eastern  dis- 

1  Rev.  Stat.  U  776,  779.  *  Eev.  Stat.  ?  780. 

■^  Kev.  Stat.  Il  776,  777.  ^  See  post,  ch.  Fees  of  Officers. 

3  llev.  Stat.  ^  778. 


ORGANIZATION    OF    DISTRICT    COURTS.  29 

tricts  of  New  York,  the  eastern  district  of  Pennsylvania,  the  south- 
ern district  of  Illinois,  the  western  district  of  Missouri,  the  north- 
ern and  southern  districts  of  Georgia,  and  the  districts  of  Massa- 
chusetts, Maryland  and  Nevada.^ 

§  22.  Marshal's  bond. — Before  any  person  can  enter  upon  the 
duties  of  the  office  of  marshal,  he  is  required  to  give  a  bond  in  the 
sum  of  twenty  thousand  dollars,  before  the  district  judge  of  the 
district,  with  sufficient  sureties,  who  must  be  inhabitants  and  free- 
holders of  the  district,  and  the  bond  must  be  approved  by  said 
judge,  for  the  faithful  performance  of  the  duties  of  himself  and  his 
deputies.  The  bond  is  required  to  be  filed  in  the  office  of  the  clerk 
of  the  district  or  circuit  court  sitting  within  the  district,  and 
copies  thereof,  certified  by  the  clerk,  are  made  competent  evidence 
in  any  court  of  justice.^ 

If  the  bond  is  not  approved  by  the  district  judge,  it  cannot  be 
considered  as  accepted  by  the  United  States,  as  he  alone  has  author- 
ity to  accept  it;  and  a  bond  with  one  surety  is  not  such  a  bond  as 
the  law  requires.^ 

§  23.  Suits  on  marshal's  bonds  ;  costs. — Any  person  injured  by 
a  breach  of  the  condition  of  a  marshal's  bond  may  maintain  an 
action  thereon  in  his  own  name,  and  recover  such  damages  as  he 
may  have  sustained,  and  as  shall  be  legally  assessed,  with  costs ; 
but  if  he  fails  to  recover,  execution  may  issue  against  him  for  costs 
in  favor  of  the  defendant.  In  no  case,  however,  can  the  United 
States  be  made  liable  for  costs. ^ 

The  proceedings  against  the  marshal  and  his  sureties  must  be  by 
action  in  the  usual  way,  and  they  cannot  be  proceeded  against  in  a 
summary  manner,  as  provided  by  state  laws.^ 

§  24.  Bond  to  remain  after  judgment ;  limitation  of  action  on. — The 
bond  remains  as  a  surety  for  any  person  injured  by  a  breach  of  its 
conditions,  after  any  judgment  rendered  thereon,  until  the  whole 
penalty  has  been  recovered,  and  the  proceedings  thereon  should 
always  be  in  the  name  of  the  party  injured.^  But  no  suit  can  be 
maintained  on  such  bond  unless  it  is  commenced  within   six  years 

'  Rev.  Stat.  ^  781.  Gwin  v.  Barton,  6  TTow.  7.    It  may  be 

*  Rev.  Stat.  |  783.  in  the  name  of  the  United  States  for 
^Jackson  r.  Simonton,  4  Cr.   C.  C.     the  benefit  of  the  party  injured  :  U.  S. 

'25o.  V.  Davidson,  1  Biss.  433. 

*  Rev.  Stat.  I  784.  «  Kev.  Stat.  ^  785. 
^  Gwin  r.   Breedlove,    2    How.    29  ; 


30  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

after  the  right  of  action  accrues,  except  in  cases  of  infants,  married 
women  and  insane  persons,  who  may  sue  within  three  years  after 
their  disabilities  are  removed.^ 

§  25.  Duties  and  powers  of  marshals. — It  is  the  duty  of  the  mar- 
shal of  each  district  to  attend  the  district  and  circuit  courts  when 
sitting  therein,  and  to  execute,  in  the  district,  all  lawful  precepts 
directed  to  him  and  issued  under  the  authority  of  the  United  States  ; 
and  he  has  authority  to  command  all  necessary  assistance  in  the  ex- 
ecution of  his  duty.  He  and  his  deputies  have  the  same  powers  in 
each  state  in  executing  the  laws  of  the  United  States  as  sheriffs 
and  their  deputies  have  by  law  in  executing  the  laws  thereof.^  It 
is  the  further  duty  of  the  marshal,  within  thirty  days  before  the 
commencement  of  each  term  of  the  circuit  or  district  court  of  his 
district,  to  make  returns  to  the  Solicitor  of  the  Treasury  of  the 
proceedings  had  upon  all  writs  of  execution,  or  other  process,  which 
have  been  placed  in  his  hands  for  the  collection  of  moneys  adjudged 
and  decreed  to  the  United  States,  in  said  courts  respectively;^  and 
if  an  execution  upon  a  judgment  in  any  suit  for  moneys  due  on 
account  of  the  Post-Office  Department  shall  be  directed  to  him,  he 
is  required  to  make  returns  to  the  Sixth  Auditor,  of  the  proceedings 
which  have  taken  place  upon  such  process  at  such  times  as  said 
auditor  may  direct.*  Original  process  must  be  served  by  a  marshal, 
and  cannot  be  properly  served  by  a  private  person.®  But  a  sub- 
poena may  be  served  by  a  private  person,  for  its  mandate  is  to  the 
witness  and  not  to  the  marshal.'' 

§  26.  Duty  of  the  deputy  in  case  of  the  death  of  the  marshaL — 
Section  789  of  the  Revised  Statutes  provides:  "In  case  of  the 
death  of  any  marshal,  his  deputy  or  deputies  shall  continue  in  of- 
fice unless  otherwise  specially  removed,  and  shall  execute  the  same 
in  the  name  of  the  deceased,  until  another  marshal  is  appointed,  as 
provided  in  this  chapter,  and  duly  qualified.  The  defaults  or  mis- 
feasances in  office  of  such  deputies  in  the  meantime  shall  be  ad- 
judged a  breach  of  the  condition  of  the  bond  given  by  the  marshal 
who  appointed  them  ;  and  the  executor  or  administrator  of  the 
deceased  marshal   shall  have  like  remedy  for  defaults  and  misfeas- 

1  Rev.  Stat.  |  786.     For  a  construe-  »  Rev.  Stat.  §  791. 

tion  of  this  section  see  United  States  *  Rev.  Stat.  |  792. 

V.  Rand,  4  Saw.  272;    Same  v.  God-  «  Schwabacker  v.  Reilly,2  Dill.  127. 

bold,  3  Woods  550;    Montgomery  v.  *  Scott  i>.  Allen,  6  Phila.  484;  Rus- 

Hernandez,  18  Wheat.  120.  sell  v.  Ashley,   Hemp.  546;  Scott   c. 

«  Rev.  Stat.  |§  787,  788.  Schwabacker  v.  Reilly,  2  Dill.  127. 


ORGANIZATION    OF    DISTRICT    COURTS,  31 

ances  in  office  of  sucb  deputies,  during  such  interval,  as  lie  would 
be  entitled  to  if  the  marshal  had  continued  in  life  and  in  the  exer- 
cise of  his  said  office,  until  his  successor  was  appointed  and  duly 
qualified."^ 

§  27.  District  attorneys  ;  appointment. — One  of  the  most  im- 
portant officers  of  the  court  is  the  district  attorney,  who  acts  as 
the  attorney  for  the  government  within  the  district  for  which  he 
is  appointed. 

It  is  provided  by  statute  that  there  shall  be  appointed  in  each 
district,  except  in  the  middle  district  of  Alabama,  and  the  northern 
district  of  Georgia,  and  the  western  district  of  South  Carolina, 
a  person  learned  in  the  law,  to  act  as  attorney  in  such  district ; 
that  the  district  attorney  in  the  northern  district  of  Alabama  shall 
perform  the  duties  of  district  attorney  of  the  middle  district  of 
that  state ;  that  the  district  attorney  of  the  southern  district  of 
Georgia  shall  perform  the  duties  of  district  attorney  of  the  north- 
ern district  of  that  state ;  and  that  the  district  attorney  of  the 
eastern  district  of  South  Carolina  shall  perform  the  duties  of  the 
office  for  the  western  district  of  that  state.  ^  The  district  attorney 
for  the  Iowa  district  is  required  to  perform  the  duties  of  district 
attorney  in  all  the  divisions  of  said  district.^ 

§  28.  Duties  of  district  attorney. — It  is  the  duty  of  this  officer 
to  prosecute  in  his  district  all  delinquents,  for  crimes  and  offences 
cognizable  under  the  laws  and  authority  of  the  United  States,  and 
all  civil  actions  in  which  the  United  States  are  concerned,  and  to 
appear  in  behalf  of  the  defendants  in  all  suits  or  proceedings  pend- 
ing in  bis  district  against  collectors  or  other  officers  of  the  revenue 
of  the  United  States,  for  any  act  done  by  them,  or  for  the  recovery 
of  any  money  exacted  by  or  paid  to  such  officers,  and  by  them  paid 
into  the  treasury  of  the  United  States,  unless  otherwise  instructed 
by  the  Secretary  of  the  Treasury.*  He  is  further  required,  on  in- 
stituting any  suit  for  the  recovery  of  any  fine,  penalty  or  forfeiture, 
to  transmit,  immediately,  a  statement  thereof  to  the  Solicitor  of 
the  Treasury;^  and,  immediately  after  the  end  of  every  term  of  the 
circuit  and  district  courts  for  his  district,  to  forward  to  the  Solicitor 
of  the  Treasury  a  full  and  particular  statement  of  all  causes  pend- 

1  See  also  Rev.  Stat.  790.     For  fur-  Feb.   24,   1879,  ch.   97,  ^  8,  20  Stat. 

ther  infonnation  on  the  subject  refer-  320. 
ence  may  be  had  to  chapter  14,  Rev.         ^  Rev.  Stat.  |  768. 
Stat.  ■»  Rev.  Stat.  |  771. 

*  Rev.    Stat.    ?    767  ;    amended   act        '^  Rev.  Stat.  |  772. 


32  FEDERAL    PLEADING,    PRAuTICE    AND    PROCEDURE. 

ing  in  said  courts  respectively,  and  of  all  causes  decided  therein 
during  said  term  in  which  the  United  States  are  a  party,  which 
statement  must  he  accompanied  by  the  certificate  of  the  clerks  of 
said  courts  respectively;^  provided,  however,  that  if  any  suit  or 
proceeding  is  commenced,  under  the  internal  revenue  laws,  to  which 
the  United  States  are  a  party,  or  any  suit  or  proceeding  is  instituted 
against  a  collector  or  other  officer  of  the  internal  revenue,  wherein 
a  district  attorney  appears,  it  is  made  the  duty  of  the  attorney  of 
the  district  in  which  it  is  brought  to  report  to  the  Commissioner  of 
Internal  Revenue  the  full  particulars  relating  to  the  same,  and,  im- 
mediately after  the  end  of  each  term  of  the  said  courts  where  such 
suit  is  pending,  forward  to  said  commissioner  a  full  and  particular 
statement  of  its  condition.^ 

He  is  further  required,  on  the  first  day  of  October  in  each  year, 
to  make  a  return  to  the  Solicitor  of  the  Treasury  of  the  number  of 
suits  and  proceedings  commenced,  pending  and  determined  within 
his  district  within  the  fiscal  year  next  preceding  the  date  of  such 
return,  showing  the  date  of  the  commencement  of  such  suit  or  pro- 
ceeding ;  and  if  the  determination  of  the  same  has  been  delayed 
beyond  the  usual  or  a  reasonable  period,  he  must  state  the  reasons 
therefor,  and  the  measures  taken  by  him  to  press  such  suits  or  pro- 
ceedings to  a  close. ^ 

He  is  also  required,  immediately  after  the  end  of  a  term  in 
which  any  suit  for  moneys  due  on  account  of  the  Post-Office  De- 
partment has  been  pending  in  his  district,  to  forward  to  the  Depart- 
ment of  Justice  a  statement  of  any  judgment  or  order  made  or  steps 
taken  in  the  same  during  such  term,  accompanied  by  a  certificate 
of  the  clerk  showing  the  parties  to  and  the  amount  of  every  such 
judgment,  with  such  other  information  as  the  Department  of  Justice 
may  require.  It  is  also  his  duty  to  direct  speedy  and  effectual 
execution  upon  any  judgment,  and  the  marshal  to  whom  it  is 
directed  must  make  return  of  his  proceedings  thereon  to  the  same 
department  at  such  times  as  it  may  direct.'* 

When  any  collector  of  customs  or  of  internal  revenue  shall  report 
to  him,  according  to  law,  any  case  in  which  any  fine,  penalty  or 
forfeiture  has  been  incurred  in  his  district  for  the  violation  of  any 
law  of  the  United  States  relating  to  the  revenue,  it  is  his  duty  to 

1  Rev.  Stat.  |  773.  »  Rev.  Stat.  ?  773. 

*  Rev.  Stat.  |  774.  '  ■*  Rev.  Stat.  ^  775. 


ORGANIZATION    OF    DISTRICT    COURTS. 


U 


cause  the  proper  proceedings  to  be  commenced  and  prosecuted 
without  dehiy  for  the  fines,  penalties  and  forfeitures  in  such  cases 
provided,  unless  he  shall  determine,  upon-  an  examination  and 
inquiry,  that  the  proceedings  could  not  be  sustained  or  that  the 
ends  of  justice  do  not  require  it ;  in  which  case  it  is  his  duty  to 
report  the  facts  in  customs  cases  to  the  Secretary  of  the  Treasury, 
and  in  internal  revenue  cases  to  the  Commissioner  of  Internal 
Revenue,  for  their  direction.' 

§  29.  Duty  to  prosecute  for  crimes. — As  it  is  made  the  duty  of 
the  prosecuting  attorney  "  to  prosecute  in  his  district  all  delinquents 
for  crimes  and  offences  cognizable  under  the  authority  of  the  United 
States,  and  all  civil  actions  in  Avhich  the  United  States  are  con- 
cerned," it  has  been  held  that  the  federal  courts  could  not  properly 
take  cognizance  of  a  cause  in  the  name  of  the  United  States  unless 
it  is  prosecuted  by  the  district  attorney  of  the  district;^  and  where 
the  prosecution  was  for  a  contempt  of  court  in  which  the  United 
States  was  interested  as  plaintiff,  it  was  held  that  the  district 
attorney  should  appear  as  prosecutor.^  But  he  has  no  power  to 
dismiss  a  criminal  charge  under  examination  before  a  commissioner, 
although  after  indictment  found  and  before  the  trial  is  commenced, 
it  seems  he  has  absolute  power  to  enter  a  nolle  prosequi.* 

§  30.  He  is  the  recognized  officer  of  the  government. — The  fed- 
eral courts  will  not  recognize  a  suit,  civil  or  criminal,  as  legally 
before  them  in  the  name  of  the  United  States,  unless  it  be  instituted 
and  prosecuted  by  a  district  attorney  duly  appointed  and  commis- 
sioned for  that  purpose.^  He  is  the  officer  of  the  government  who 
has  the  proper  charge  of  its  legal  proceedings  within  the  district, 
subject  only  to  the  supervision  of  the  Attorney-General.  If  other 
attorneys  or  counsel  are  employed  by  the  government  it  is  to  aid 
him,  and  not  as  official  representatives  of  the  government.^  And 
if  the  bill,  declaration  or  other  pleading  on  the  part  of  the  govern- 
ment does  not  show  that  the  suit  was  instituted  by  the  proper  dis- 
trict attorney,  it  would  be  demurrable.'^     The  court  can  only  have 

'  Rev.  Stat,  f  838.  *  United     States    v.    Schumann,    2 

^  United  States  v,  McAvoy,  4  Blatch.  Abb.  U.  S.  523. 

418;  United  States  v.  Doujihty,  7  Id.  *  United  States  t-.  McAvoy,  4  Blatcli. 

424;  United  States  i?.  Blaisdell,  3  Ben.  418  ;  United  States  v.  Doughty,  7  Id. 

132.  424. 

*Durant    v.    AVashington     Co.,     1  ®  The  Pueblo  Case,  4  Saw.  553. 

Woolw.  377.  '  United  States  v.  Doughty, 7  Blntrh. 

424. 


34       FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

communication  with  the  executive  oflBcers  of  the  government  through 
the  district  attorney.^ 

It  is  made,  as  we  have  seen,  the  duty  of  the  district  attorney  to 
prosecute  in  his  district  all  delinquents  for  crimes  and  oifences 
cognizable  under  the  authority  of  the  United  States,  and  all  civil 
actions  in  which  the  United  States  are  concerned ;  and  it  is  his 
further  duty  to  provide  the  marshal  with  the  necessary  process  to 
carry  into  execution  the  judgments  of  the  courts.^  He  sliould 
attend  the  sessions  of  the  grand  jury,  to  advise  that  body  on  ques- 
tions of  law  that  may  be  presented,  to  examine  witnesses,  and, 
when  required  by  them,  to  draw  indictments.  But  he  has  no  right 
to  control  the  action  of  a  grand  jury  or  prevent  its  consideration  of 
any  particular  case  before  it,  by  representing  or  declaring  that 
the  government  will  not  prosecute  it.^  Nor  can  he  enter  a  nolle 
prosequi  in  a  criminal  case  without  the  consent  of  the  court.* 

§  31.  District  attorney's  fees  and  compensation. — Chapter  xvi. 
of  the  Revised  Statutes  provides  for  the  fees  and  compensation  of 
district  attorneys,  clerks,  marshal"?,  commissioners  and  other  offi- 
cers ;  and  sections  823  and  824  of  said  chapter,  what  costs  may  be 
taxed  and  allowed  to  attorneys,  solicitors  and  proctors  in  the  courts 
of  the  United  States,  which  embraces  district  attorneys.^ 

Various  sections  of  this  chapter,  as  will  be  seen  by  a  reference 
to  it,  provide  for  extra  compensation  for  special  and  extraordinary 
services ;  but  he  is  required  semi-annually  in  each  year,  to  wit, 
"  on  the  first  days  of  January  and  July,  or  within  thirty  days  there- 
after, to  make  to  the  Attorney-General,  in  such  form  as  he  may  pre- 
scribe, a  written  return  for  the  half  year  ending  on  said  days 
respectively,  of  all  fees  and  emoluments  of  his  office  of  every  name 
and  character,  and  of  all  the  necessary  expenses  of  his  office,  in- 
cluding necessary  clerk-hire,  together  with  the  vouchers  for  the 
payment  of  the  same  for  such  last  half  year."  Said  returns  are 
required  to  be  verified  by  the  oath  of  the  district  attorney  making 
the  same.^ 

The  return  is  required  to  embrace   all  fees,  charges   and  emolu- 

1  United   States  v.  Blaisdell,  3  Ben.  *  United   States  v.  Corrie,  23  L.  R. 

132.  145.     But  see  United  States  v.  Wat- 

^  Levy   Court   v.  Rinfr^old,  5    Pet.  son,  7  Blatcli.  60 ;    United   States  v. 

451  ;  8.  c,  2  Cr.  C.  C.  659,  Schumann,  2  Abb.  C.  C.  523. 

*  United     States    v.    Schumann,   2  ^  See  chapter  xiii.,^05<. 

Abb.  C.  C.  523.  «  Rev.  Stat.  |  833. 


ORGANIZATION    OF   DISTRICT    COURTS.  35 

ments  to  which  he  may  be  entitled  bj  reason  of  the  discharge  of 
the  duties  of  his  office/  except  fees  he  may  have  received  in  suits 
or  proceedings  arising  under  the  revenue  laws  of  the  United  States, 
conducted  by  him,  and  in  which  the  United  States  were  a  party,  in 
which  he  is  allowed  two  per  centum  upon  the  moneys  collected,^ 
and  except  such  compensation  as  he  may  have  received  for  official 
duty  performed  by  direction  of  the  Secretary  or  Solicitor  of  the 
Treasury,  on  behalf  of  any  officer  of  the  revenue  in  any  suit 
against  such  officer,  or  for  the  recovery  of  any  money  received 
by  him  and  paid  into  the  treasury  of  the  United  States,  in  the 
performance  of  his  official  duty ;  in  which  case  he  is  allowed  such 
compensation  as  may  be  certified  to  be  proper  by  the  court  in 
which  the  suit  is  brought,  and  approved  by  the  Secretary  of  the 
Treasury.^ 

But  section  835  of  the  Revised  Statutes  provides:  "No  district 
attorney  shall  be  allowed  by  the  Attorney-General  to  retain  of  the 
fees  and  emoluments  of  his  office  which  he  is  required  to  include  in 
his  semi-annual  return,  for  his  personal  compensation,  over  and  above 
the  necessary  expenses  of  his  office,  including  necessary  clerk-hire, 
to  be  audited  and  allowed  by  the  proper  accounting  officers  of  the 
Treasury  Department,  a  sum  exceeding  six  thousand  dollars  a  year, 
or  exceeding  that  rate  for  any  time  less  than  a  year."* 

The  district  attorney  for  the  southern  district  of  New  York, 
however,  is  entitled  to  receive  quarterly  a  salary  at  the  rate  of 
six  thousand  dollars  a  year ;  and  for  extra  services  the  district  at- 
torney for  the  district  of  California  is  entitled  to  receive  a  salary  at 
the  rate  of  five  hundred  dollars  a  year,  and  the  district  attorneys 
for  all  other  districts  at  the  rate  of  two  hundred  dollars  a  year ;  ^ 
and  in  addition  to  the  salary  of  the  district  attorney  of  the  south- 
ern district  of  New  York,  above  mentioned,  he  is  entitled  to  such 
additional  sum  as  may  be  necessary,  together  with  the  costs  and 
fees  allowed  him  by  law,  to  pay  such  amount  as  may  be  fixed  by 
the  Attorney  General  for  the  proper  expenses  of  his  office.  But 
the  restrictions  above  referred  to  do  not  prevent  the  allowance  of 
additional  compensation  for  services  in  prize  cases."     In  such  cases 

1  Rev.  Stat.  §  834.  Pr.   Cas.  337  ;    Ex  parte  Robbins,  2 

*  Rev.  Stat.  I  825.  Gallis.  320. 

»  Rev.  Stat.  ^  827.  *  Rev.  Stat.  ?  770. 

*  Rev.  Stat.  |  835.  For  construction        '  Rev.  Stat.  I  836. 
of  this  section  see  The  Anna,  Blatch. 


36  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

the  district  attorney  is  allowed  just  and  reasonable  compensation, 
to  be  adjusted  and  determined  by  the  court.*  For  fees  of  officers 
see  post,  ch.  xiii. 

§  32.  Term  and  oath  of  office  of  district  attorney. — District  attor- 
neys are  appointed  for  the  term  of  four  years,  and  their  commissions 
expire  at  the  end  of  four  years  from  the  date  of  the  same ;  and 
every  district  attorney  is  required,  before  entering  upon  the  duties 
of  his  office,  to  be  sworn  to  a  faithful  execution  of  the  duties  of  his 
office.^     But  no  official  bond  seems  to  be  required  of  him. 

1  Rev.  Stat.  ?  464G.  .  '^  Rev.  Stat.  |  769. 


CHAPTER  IV. 

TERMS    AND    SESSIONS    OF   THE    DISTRICT    COURTS. 

^  33.  Regular  terms  of  the  district  courts. — The  Revised  Statutes 
provide  for  the  regular  terms  of  the  district  courts,  and  other 
matters  relating  to  them,  which  with  various  subsequent  amend- 
ments are  as  follows: — 

Terms  of  district  courts. — Sec.  572.  The  regular  terms  of 
the  district  courts  shall  be  held  at  the  times  and  places  follow- 
ing; but  when  any  of  said  dates  shall  fall  on  Sunday,  the  terms 
shall  commence  on  the  following  day  : 

Alabama. — In  the  southern  district  of  Alabama,  at  Mobile,  on 
the  fourth  Monday^  of  December  and  the  first  Monday  of  June  in 
each  year;  for  the  middle  district,  at  Montgomery,  on  the  first 
Monday  of  May  and  the  first  Monday  of  November  in  each  year : 
for  the  northern  district,  at  Huntsville,  on  the  first  Monday  of 
April  and  the  second  Monday  of  October  in  each  year. 

Arhansas. — In  the  eastern  district  of  Arkansas,  at  Little  Rock, 
on  the  first  Monday  in  April  and  October,'^  and  at  Helena,  on  the 
second  Monday  in  March  and  October ;  in  the  western  district  of 
Arkansas,  at  Fort  Smith,  on  the  first  Monday  in  February,  May, 
August  and  November. 

California. — In  the  district  of  California,  at  San  Francisco,  on 
the  first  Monday  in  April,  on  the  second  Monday  in  August,  and 
on  the  first  Monday  in  December. 

Connecticut. — In  the  district  of  Connecticut,  at  New  Haven,  on 
the  fourth  Tuesday  in  February  ;  at  Hartford,  on  the  fourth  Tuesday 
in  May ;  at  New  Haven,  on  the  fourth  Tuesday  in  August,  and  at 
Hartford,  on  the^  first  Tuesday  in  D  ecember. 

Colorado. — '^That  terms  of  the  circuit  and  district  courts  of  the 
United  States  for  the  district  of  Colorado  shall  be  held  at  the  times 
and  places  hereinafter  designated,  namely:  At  Denver,  on  the  first 

'  As  amended  hy  act  of  June  22,  ^  As  amended   by  act  of  June  30, 

1S74,  ?  6,  IS  Stat.  195.  1879,  ch.  49.  21  Stat.  41. 

■^  As  amended  by    act  of  January  *  As  amended   by  act  of  April  20, 

:-.].  1S74,  ch.  41,  19  Stat.  230.             "  1880,  oh.  58.  §  1,  21  Stat.  7('.. 


38  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

Tuesday  in  May  and  the  first  Tuesday  in  October  in  each  year ; 
at  Pueblo,  on  the  first  Tuesday  in  March  in  each  year ;  at  Del 
Norte,  on  the  first  Tuesday  in  September  in  each  year. 

Delaware. — In  the  district  of  Delaware,  at  Wilmington,  on  the 
second  Tuesday  in  January,  April,  June  and  September. 

Florida. — In  the  northern  district  of  Florida,  at  Tallahassee, 
on  the  first  Monday  in  February,  at  Pensacola,  on  the  first  Monday 
in  March,  and  at  Jacksonville,  on  the  first  Monday  in  December. 

In  the  southern  district  of  Florida,  at  Key  West,  on  the  first 
Monday  in  May  and  November. 

That  a  term  of  the  district  and  circuit  courts  of  the  United 
States  shall  be  held  in  each  year  at  Tampa,  in  said  district,  com- 
mencing on  the  first  Monday  in  March,  provided  that  nothing 
herein  contained  shall  be  construed  to  impair  or  aff'ect  the  juris- 
diction of  the  district  court  of  the  United  States  for  the  northern 
district  of  Florida,  in  any  case,  civil  or  criminal,  pending  therein 
at  the  time  of  the  passage  of  this  act,  but  the  same  shall  be  pro- 
ceeded in  to  final  disposition  as  if  this  act  had  not  been  passed. 

Georgia. — In  the  northern  district  of  Georgia,  at  Atlanta,  on 
the  first  Monday  in  March  and  September. 

In  the  southern  district  of  Georgia,  at  Savannah,  on  the  second 
Tuesday  in  February,  May,  August  and  November. 

'A  term  of  the  circuit  court  and  of  the  district  court  for  the 
southern  district  of  Georgia  shall  be  held  at  Macon,  in  said  state, 
on  the  first  Monday  of  May  and  October  in  each  year. 

lUhiois. — In  the  northern  district  of  Illinois,  at  Chicago,  on  the 
first  Monday  in  July  and  the  third  Monday  in  December. 

In  the  southern  district  of  Illinois,  at  Springfield,  on  the  first 
Monday  in  January  and  June,  and  at  Cairo,  on  the  first  Monday 
in  March  and  October. 

Indiana. — In  the  district  of  Indiana,  at  Indianapolis,  on  the  first 
Tuesday  in  May  and  November,  and  at  New  Albany,  on  the  first 
Monday  in  January  and  July,  and  at  Evansville,  on  the  first  Mon- 
day in  February  and  August. 

^That  there  shall  be  two  terms  of  the  United  States  district 
and  circuit  courts  for  the  district  of  Indiana,  held  in  the  city  of 
Fort  Wayne,  Indiana,  in  each  year,  from  and  after   the  passage 

^  As  amended  by  act  of  January  ^  As  amended  by  act  of  June  IS, 
29,  1880,  oh.  17,  g  3,  21  Stat.  63.  1878,  eh.  269,  |  1,  20  Stat.  166. 


DISTRICT   COURTS.  39 

of  this  act,  the  time  and  length  of  the  terms  to  be  fixed  by  the 
judges  of  said  courts  respectively. 

^That  each  of  said  courts  shall  be  held  in  a  building  to  be 
provided  for  that  purpose  by  the  county  or  city  authorities  without 
expense  to  the  United  States. 

Iowa. — In  the  northern  district  of  Iowa,  at  Dubuque,  on  the 
third  Tuesday  in  April  and  November,  at  Fort  Dodge,  on  the  third 
Tuesday  in  January  and  June,  and  at  Sioux  City,  on  the  second 
Tuesday  in  February  and  July." 

In  the  southern  district,  at  Keokuk,  on  the  third  Tuesday^  in 
January  and  the  third  Tuesday  in  June. 

In  the  central  division,  at  Des  Moines,  on  the  second  Tuesday 
in  May  and  the  third  Tuesday  in  October. 

In  the  western  division,  at  Council  Bluffs,  on  the  fourth  Monday 
in  March  and  the  fourth  Monday  in  September. 

Kansas. — In  the  district  of  Kansas,  at  the  seat  of  government, 
on  the  second  Monday  in  April,  and  at  Leavenworth,  on  the  second 
Monday  in  October. 

^That  there  shall  be  one  term  of  the  United  States  district  and 
circuit  courts  for  the  district  of  Kansas,  held  in  the  city  of  Fort 
Scott,  in  each  year,  the  terms  of  said  courts  to  be  held  on  the 
second  Monday  in  January  from  and  after  the  passage  of  this  act. 
But  no  cause  of  action  or  proceeding  shall  be  tried  or  considered 
in  the  courts  respectively  herein  provided  for,  unless  by  consent  of 
all  the  parties  thereto  or  order  of  the  court  for  cause. 

^That  each  of  said  courts  shall  be  held  in  a  building  to  be  pro- 
vided for  that  purpose  by  the  county  or  city  authorities  without 
expense  to  the  United  States.  If  no  suitable  building  is  provided 
without  expense  to  the  United  States,  then  and  in  that  case  no 
court  shall  be  held  at  that  place. 

'Kentucky. — In  the  district  of  Kentucky,^  at  Covington,  on  the 
second  Monday  in  May  and  the  first  Monday  in  December ;  at 
Louisville,  on  the  third  Monday  in  February  and  the  first  Monday 
in  October ;  at  Frankfort,  on  the  first  Monday  in  January  and  the 

^  As  amended  by   act  of  June  18,  *  As  amended  by  act  of  March  3, 

1878,  ch.  269,  §  3,  20  Stat.  166.  1879,  oh.  177,  |  1,  20  Stat.  355. 

*  As  amended  by  act  of  July  20,  *  As  amended  by  act  of  March  3, 

1882.  ch.  312,  §  7.  1879,  ch.  177,  §  3,  20  Stat.  355. 

'As  amended  by  act  of  February  *  As  amended  by    act  of   July   1, 

9,  1874,  ch.  24,  g  1,  18  Stat.  15.  1879,  ch.  39,  U,  21  Stat.  45. 


4f)  FEDERAL    PLEAPIXG,    FllACTICK    AND    PROCEDURE. 

fiocond  Monday  in  June ;  and  at  Paducah,  on  the  first  Monday  in 
April  and  the  third  Monday  in  November. 

Louisiana. — In  the  district  of  Louisiana,  at  New  Orleans,  on  the 
third  Monday  in  February,  May  and  November. 

BIdine. — In  tho  district  of  Maine,  at  Portland,  on  the  fii'st  Tues- 
day in  February;  at  Bangor,  on  the  fourth  Tuesday  in  June;  at 
Bath,  on  the  first  Tuesday  in  September,  and  at  Portland,  on  the 
first  Tuesday  in  December. 

Maryland. — In  the  district  of  Maryland,  at  Baltimore,  on  the 
first  Tuesday  in  March,  June,  September  and  December. 

3IassacJiusetts. — In  the  district  of  Massachusetts,  at  Boston,  on 
the  third  Tuesday  in  March,  on  the  fourth  Tuesday  in  June,  on  the 
second  Tuesday  in  September,  and  on  the  first  Tuesday  in  December. 

Michigan. — In  the  eastern  district  of  Michigan,  at  Detroit,  on  the 
first  Tuesday  in  March.  June  and  November. 

'There  shall  be  one  or  more  terms  of  the  district  court  for  the 
eastern  district  of  Michigan,  held  annually  at  the  United  States 
court  room  in  the  city  of  Port  Huron  in  said  district,  at  the  discre- 
tion of  the  judge  of  said  district  court,  and  at  such  times  as  he 
shall  appoint  therefor. 

-The  regular  terms  of  the  circuit  and  district  courts  in  said 
southern  division  (of  the  western  district  of  Michigan)  shall  be  held 
at  the  city  of  Grand  Rapids,  commencing  on  the  first  Tuesday  in 
March  and  October  in  each  year. 

The  regular  terms  of  the  circuit  and  district  courts  in  said 
northern  division  (of  the  western  district  of  Michigan)  shall  be  held 
at  the  city  of  Marquette,  commencing  on  the  first  Tuesday  in  May 
and  September  in  each  year. 

And  all  issues  of  fact  shall  be  tried  at  the  terras  of  said  courts  to 
be  held  in  the  division  where  such  suits  shall  hereafter  be  com- 
menced; but  nothing  herein  contained  shall  prevent  tlie  said  circuit 
and  district  courts  from  regulating  by  general  rule  the  venue  of 
transitory  actions,  either  in  law  or  in  equity,  and  from  changing 
the  same  for  cause. 

Minnesota. — In  the  district  of  Minnesota,  at  Winona,  on  the  first 
Monday  in  June,  and  at  St.  Paul,  on  the  first  Monday  in  October. 

Mississijyjn. — In  the  northern  district  of  Mississippi,  at  Oxford, 
on  the  first  Monday  in  June  and  December. 

^  As  amended  by  act  of  June  19,  ^  As  amended  bv  act  of  June  19, 
1878,  ch.  336,  §  9,  20  Stat.  177.  1S7S,  ch.  32fi,  §  2,  2(J  Stat.  17fi. 


DISTRICT    COURTS.  41 

In  the  southern  district  of  Mississippi,  at  Jackson,  oa  the  fourth 
Monday  in  January  and  June. 

3Iis80uri. — In  the  eastern  district  of  Missouri,  at  St.  Louis,  on 
the  first  Monday  in  May  and  November. 

In  the  western  district  of  Missouri,  at  Jefferson,  on  the  first 
Monday  in  March  and  September. 

The  ^western  district  of  Missouri  is  hereby  divided  into  two 
divisions,  which  shall  be  known  as  the  eastern  and  western  divisions 
of  the  western  district  of  Missouri.  The  western  division  shall  in- 
clude the  counties  of  Andrew,  Atchison,  Barton,  Bates,  Buchanan. 
Caldwell,  Carroll,  Cass,  Chariton,  Cla}^  Clinton,  Daviess,  De  Kalb, 
Gentry,  Grundy,  Harrison,  Holt,  Jackson,  Jasper,  La  Fayette. 
Linn,  Livingston,  Mercer,  Nodaway,  Piatt,  Putnam,  Ray,  Saline, 
Sullivan,  Vernon  and  Worth,  and  a  term  of  the  district  court 
and  circuit  court  of  the  United  States  for  said  district  shall  be 
held  therein  at  the  city  of  Kansas,  on  the  third  Monday  in  May 
and  the  third  Monday  in  October  of  each  year.  The  remaining 
counties  embraced  in  said  district  shall  constitute  the  eastern 
division  thereof,  and  the  terms  of  the  circuit  and  district  court? 
of  the  United  States  for  said  district  shall  be  held  therein  at  tht- 
times  and  places  now  prescribed  by  law. 

Nebraska. — In  the  district  of  Nebraska,  at  Omaha,  on  the  first  Mon- 
day in  May  and  on  the  ^second  Monday  in  November  in  each  year. 

That  ^ there  shall  be  one  term  of  the  United  States  district  and 
circuit  courts  for  the  district  of  Nebraska,  held  in  the  city  of  Lin- 
coln, Nebraska,  on  the  first  Monday  in  January  in  each  year,  from 
and  after  the  passage  of  this  act,  and  one  grand  jury  and  one  petit 
jury  only  shall  be  summoned  and  serve  in  both  of  said  courts  at 
each  term  thereof. 

Nevada. — In  the  district  of  Nevada,  at  Carson  City,  on  the  first 
Monday  in  February,  jMay  and  October. 

New  Hampshire. — In  the  district  of  New  Hampshire,  at  Ports- 
mouth, on  the  third  Tuesday  in  March  and  September;  at  Exeter, 
on, the  third  Tuesday  in  June  and  December. 

New  Jersey. — In  the  district  of  New  Jersey,  at  Trenton,  on 
the  third  Tuesday  in  January,  April,  June  and  September. 

New  York. — In  the  northern  district  of  New  York,  at  Albany, 

'  As  amended  by  act  of  January  ^  As  amended  by  .act  of  June  19. 
21,  1879,  ch.  20,  |  1,  20  Stat.  263.      '       1S7S.  di.  31.3,  20  Stat.  169. 

'  As  amended  by  act  of   February 
17,  1877,  ch.  60,  19  Stat.. 232. 


42  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

on  the  third  Tuesday  in  January  ;  at  Utica,  on  the  third  Tuesday 
in  March  ;  at  Rochester,  on  tlie  second  Tuesday  in  May  ;  at  Buffalo, 
on  the  third  Tuesday  in  August ;  at  Auburn,  on  the  third  Tuesday  in 
November  ;  and,  in  the  discretion  of  tlie  judge  of  said  court,  one  term 
annually  at  such  time  and  place  within  the  counties  of  Saint  Law- 
rence, Clinton,  Jefferson,  Oswego  and  Franklin  as  he  may  from 
time  to  time  appoint.  Such  appointment  shall  be  made  by  a  notice 
of  at  least  twenty  days  published  in  the  state  paper  of  the  state  of 
New  York,  and  in  one  newspaper  published  at  the  place  where  said 
court  is  to  be  held ;  and  said  term  shall  be  held  only  for  the  trial 
of  issues  of  fact  arising  within  said  counties. 

In  the  southern  district  of  New  York,  at  the  city  of  New  York, 
on  the  first  Tuesday  in  every  month. 

In  the  eastern  district  of  New  York,  at  Brooklyn,  on  the  first 
AVednesday  in  every  month. 

North  Carolina. — In  the  eastern  district  of  North  Carolina,  at 
Elizabeth  City,  on  the  third  Monday  in  April  and  October  ;  at  New 
Berne,  on  the  fourth  Monday  in  April  and  October  ;  and  at  Wilming- 
ton, on  the  first  Monday  after  the  fourth  Monday  in  April  and  October. 

In  the  western  district  of  North  Carolina,  at  Greensborough,  on 
the  first  Monday  in  April  and  October ;  at  Statesville,  on  the  third 
Monday  in  April  and  October;  and  at  Asheville,  on  the  first  Mon- 
day in  May  and  November. 

^  That  additional  terms  of  the  district  and  circuit  courts  of  the 
United  States  for  the  western  district  of  North  Carolina  shall  here- 
after be  held  at  the  city  of  Charlotte,  in  said  state,  and  that  said 
terms  shall  commence  respectively  on  the  second  Monday  in  June 
and  the  second  Monday  in  December  in  each  and  every  year,  and 
shall  continue  until  the  business  is  disposed  of. 

Ohio. — In  the  eastern  division  of  the  northern  district  of  Ohio,  at 
Cleveland,  on  the  first  Tuesday  in  January,  April  and  October. 

^  That  a  term  of  the  circuit  court  and  district  court  for  the  western 
division  northern  district  of  Ohio  shall  be  held  at  Toledo,  in  said 
state,  on  the  first  Tuesday  in  the  months  of  June  and  December  in 
each  year,  and  one  grand  jury  and  one  petit  jury  only  shall  be 
summoned  and  serve  in  both  of  said  courts  at  each  term  thereof. 

^A  term  of  the  circuit   court  and  of  the   district  court  for  the 

'  As  amended  by  act  of  June  19,  ^  As  amended  by  act  of  February  4, 
1878,  ch.  322,  20  Stat.  173.  1880,  ch.  18,  g  2,  21  Stat.  64. 

^  As  amended  by  act  of  June  8, 1878, 
ch.  169,  20  Stat.  101. 


DISTRICT    COURTS.  43 

southern  district  of  Ohio  shall  be  held  at  Columbus,  in  said  state, 
on  the  first  Tuesday  in  the  months  of  June  and  December  in  each  year. 

In  the  southern  district  of  Ohio,  at  Cincinnati,  on  the  first 
Tuesday  in  February,  April  and  October. 

Oregon. — In  the  district  of  Oregon,  at  Portland,  on  the  first 
Monday  in  March,  July  and  November. 

Pennsylvania. — In  the  eastern  district  of  Pennsylvania,  at  Philadel- 
phia, on  the  third  Monday  in  February,  May,  August  and  November. 

In  the  western  district  of  Pennsylvania,  at  Pittsburgh,  on  the 
first  Monday  in  May  and  on  the  third  Monday  in  October ;  at 
Williamsport,  on  the  third  Monday  in  June  and  on  the  first  Mon- 
day in  October ;  at  Erie,  on  the  second  Monday  in  January  and 
the  third  Monday  in  July. 

Rhode  Island. — In  the  district  of  Rhode  Island,  at  Providence,  on 
the  first  Tuesday  in  February  and  August ;  at  Newport,  on  the 
second  Tuesday  in  May  and  the  third,  Tuesday  in  October. 

South  Carolina. — In  the  eastern  district  of  South  Carolina,  at 
Charleston,  on  the  first  Monday  in  January,  May,  July  and  October. 
In  the  western  district,  at  Greenville,  on  the  first  Monday  in  August. 

Tennessee. — In  the  eastern  district  of  Tennessee,  at  Knoxville,  on 
the  second  Monday  in  January  and  July. 

In  the  middle  district  of  Tennessee,  at  Nashville,  on  the  third 
Monday  in  April  and  October. 

In  the  western  district  of  Tennessee,  at  Memphis,  on  the  fourth 
Monday  in  May  and  November. 

^A  term  of  the  circuit  court  and  of  the  district  court  for  the 
eastern  district  of  Tennessee  shall  be  held  at  Chattanooga,  in  said 
state,  in  each  year  on  the  first  Monday  in  April  and  October. 

-The  western  district  of  Tennessee  is  hereby  divided  into  two  di- 
visions, which  shall  be  known  as  the  eastern  and  western  divisions 
thereof.  The  eastern  division  shall  include  the  counties  of  Benton, 
Carroll,  Decatur,  Gibson,  Henderson,  Henry,  Madison,  McNairy, 
Hardin,  Dyer,  Lake,  Crockett,  Weakley  and  Obion ;  and  terms  of 
the  circuit  and  district  courts  of  the  United  States  for  said  dis- 
trict shall  be  held  therein  at  the  town  of  Jackson,  in  the  county 
of  Madison,  at  least  twice  in  each  year,  at  such  times  as  the  judges 

^  As  amended  by  act  of  June  11,  1^78,  ch.  359,  20  Stat.  235,  and  March 
1880,  ch.  203,  §  2,  21  Stat.  175.  3,  1879,  ch.  1820,  2  Stat.  398. 

^  As  amended  by  act  of  June  20, 


44  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

thereof  shall  respectively  fix.  The  remaining  counties  embraced 
in  said  district  shall  constitute  the  western  division  thereof,  and 
terms  of  the  district  and  circuit  courts  of  the  United  States  for 
said  district  shall  be  held  therein  at  the  time  and  place  now  pre- 
.'■cribed  by  law. 

Texas. — 'That  the  courts  in  the  northern  judicial  district  (of 
Texas)  shall  be  held  twice  in  each  year  at  Waco,  Dallas,  and  ar 
Graham  in  Young  County  ;  and  the  courts  in  the  eastern  judicial 
district  shall  be  held  twice  in  each  year  at  Galveston,  Tyler  and 
Jefferson  ;  and  the  courts  in  the  western  judicial  district  shall  be  hehl 
twice  in  each  year  at  Brownsville,  San  Antonio  and  Austin.  The 
courts  shall  be  held  in  the  city  of  Waco  on  the  first  Monday  in  April 
and  October ;  in  the  city  of  Dallas,  on  the  first  Monday  in  June  and 
December;  in  the  town  of  Graham,  Young  County,  on  the  first 
Monday  in  February  and  August ;  in  the  city  of  Galveston,  on  the 
first  Monday  in  November  and  March  ;  at  the  city  of  Tyler,  on  the 
second  Monday  in  January  and  May ;  at  the  city  of  Jefferson,  on 
the  second  Monday  in  February  and.  September ;  at  the  city  of 
Brownsville,  on  the  first  Monday  in  January  and  July  ;  at  San 
Antonio,  on  the  first  Monday  in  May  and  November;-  at  Austin, 
on  the  first  Monday  in  February  and  August.  And  the  district 
judge  of  each  of  said  districts  shall  have  power  to  fix  adjourned 
terms  at  all  of  said  places,  so  as  to  dispose  of  the  whole  of  the 
business  of  said  courts. 

Vermont. — In  the  district  of  Vermont,  at  Burlington,  on  the 
fourth  Tuesday  in  February  ;  at  Windsor,  on  the  ^third  Tuesday  in 
May ;  at  Rutland,  on  the  first  Tuesday  in  October. 

Virginia. — In  the  eastern  district  of  Virginia,  at  Richmond,  on 
the  first  Monday  in  April  and  October ;  at  Alexandria,  on  the  first 
Monday  in  January  and  July  ;  and  at  Norfolk,  on  the  first  Monday 
in  May  and  November. 

In  the  western  district  of  Virginia,  at  Danville,  on  the  Tuesday 
after  the  fourth  Monday  in  February  ^and  on  the  fifteenth  day  of 
November,  but  if  said  last-mentioneil  day  shall  fall  on  Sunday,  the 
term  shall  commence  on  the  following  day ;  at  Lynchburg,  on  the 
Tuesday  after  the  third   Monday  in   March   and   September ;   at 

^  As  amended  by  act  of  February  ''As  amended  by  act  of  June  11, 
24,  1879,  ch.  97,  H,  ^0  Stat.  31S.     /      1S7J>,  ch.  1SL>,  20  Stat.  111. 

■^  As  amended    by  act    of  June  5. 
1874,  ch.  214,  18  Stat.  53. 


DISTRICT    COURTS.  45 

Abingdon,  on  the  Tuesday  after  the  fourth  Monday  in  May  and 
October;  and  at  Harrisonburg,  on  the  Tuesday  after  the  first 
Monday  in  May,  and  the  Tuesday  after  the  second  Monday  in 
October. 

West  Virginia. — '  That  hereafter  the  district  court  of  the  United 
States  for  the  district  of  West  Virginia  shall  be  held  at  the  times 
and  places  following,  but  when  any  of  said  dates  shall  fall  on  Sun- 
day, the  term  shall  commence  the  following  Monday,  to  wit :  At  the 
city  of  Wheeling,  on  the  first  day  of  March  and  the  first  day  of  Sep- 
tember ;  at  Clarksburg,  on  the  first  day  of  April  and  the  first  day 
of  October.;  at  Charlestown,  on  the  first  day  of  May  and  the  first 
day  of  November. 

Wisconsin. — In  the  eastern  district  of  Wisconsin,  at  Oshkosh,  on 
the  ^second  Tuesday  of  July  of  each  year;  at  Milwaukee,  on  the 
first  Monday  in  January  and  October. 

In  the  western  district  of  Wisconsin,  at  Madison,  on  the  first 
Monday  in  June ;  and  at  La  Crosse,  on  the  third  Tuesday  in 
September. 

Effect  of  changing  time  of  holding  district  courts. — 
Sec.  573.  No  action,  suit,  proceeding  or  process  in  any  district 
court  shall  abate  or  be  rendered  invalid  by  reason  of  any  act 
changing  the  time  of  holding  such  court ;  but  the  same  shall  be 
deemed  to  be  returnable  to,  pending  and  triable  in  the  terms  estab- 
lished next  after  the  return  day  thereof. 

Court  always  open  as  a  court  of  admiralty  for  certain 
purposes. — Sec.  574.  The  district  courts,  as  courts  of  admiralty, 
and  as  courts  of  equity  so  far  as  equity  jurisdiction  has  been  con- 
ferred upon  them,  shall  be  deemed  always  open  for  the  purpose  of 
filing  any  pleading,  of  issuing  and  returning  mesne  and  final  pro- 
cess, and  of  making  and  directing  all  interlocutory  motions,  orders, 
rules  and  other  proceedings  preparatory  to  the  hearing,  upon  their 
merits,  of  all  causes  pending  therein.  And  any  district  judge  may, 
upon  reasonable  notice  to  the  parties,  make,  and  direct  and  award, 
at  chambers,  or  in  the  clerk's  office,  and  in  vacation  as  well  as  in 
term,  all  such  process,  commissions,  orders,  rules  and  other  pro- 
ceedings, whenever  the  same  are  not  grantable  of  course,  according 
to  the  rules  and  practice  of  the  court. 

^  As  amended  by  act  of  March  9,  -  As  amended  by  act  of  June  1(>, 
1878,  ch.  27,  20  Stat.  27.  1874,  ch.  286,  §  1,  18  Stat.  75. 


4g  federal  pleading,  practice  and  procedure. 

District  court  in  the  southern  district  of  Florida. — 
Sec.  575.  The  district  court  for  the  southern  district  of  Florida 
shall  at  all  times  be  open,  for  the  purpose  of  hearing  and  deciding 
causes  of  admiralty  and  maritime  jurisdiction. 

District  courts  in  Wisconsin. — Sec.  576.  The  district  courts 
of  the  districts  of  Wisconsin  shall  at  all  times  be  open,  for  the  pur- 
pose of  hearing  and  deciding  causes  of  admiralty  and  maritime 
jurisdiction,  so  far  as  the  same  can  be  done  without  a  jury. 

District  courts  in  Kentucky  and  Indiana. — Sec.  511.  In 
the  districts  of  Kentucky  and  Indiana  the  terms  of  the  district 
courts  shall  not  be  limited  to  any  particular  number  of  days,  nor 
shall  it  be  necessary  to  adjourn  by  reason  of  the  intervention  of  a 
term  of  the  court  elsewhere  ;  but  the  court  intervening  may  be  ad- 
journed over  till  the  business  of  the  court  in  session  is  concluded. 

Adjournment  in  criminal  cases. — Sec.  578.  District  courts 
shall  hold  monthly  adjournments  of  their  regular  terms,  for  the 
trial  of  criminal  causes,  when  their  business  requires  it  to  be  done, 
in  order  to  prevent  undue  expenses  and  delays  in  such  cases. 

Adjourned  terms. — Sec.  579.  The  judge  of  any  district  court 
in  Indiana,  Kentucky,  Louisiana,  Michigan,  Ohio,  Pennsylvania 
and  Texas  may  adjourn  the  same  from  time  to  time,  to  meet  the 
necessities  or  convenience  of  the  business. 

Adjourned  terms  in  Kentucky  and  Indiana. — Sec.  580.  In 
the  districts  of  Kentucky  and  Indiana  the  intervention  of  a  term  of 
the  district  court  at  another  place,  or  of  a  circuit  court,  shall  not 
preclude  the  power  to  adjourn  over  to  a  future  day. 

Special  terms. — Sec.  581.  A  special  term  of  any  district 
court  may  be  held  at  the  same  place  where  any  regular  term 
is  held,  or  at  such  other  place  in  the  district  as  the  nature  of  the 
business  may  require,  and  at  such  time  and  upon  such  notice  as 
may  be  ordered  by  the  district  judge.  And  any  business  may  be 
transacted  at  such  special  term  which  might  be  transacted  at  a 
regular  term. 

Tennessee;  when  circuit  judges  may  act  as  district 
judges. — Sec.  582,  In  the  case  of  the  non-attendance  of  the 
district  judge  of  Tennessee  at  any  term  of  the  district  court  in 
either  of  the  districts  thereof,  the  circuit  justice  or  circuit  judge 
of  the  circuit  to  which  such  district  belongs  may  hold  such  term, 
and  shall  have  and  exercise  the  jurisdiction  and  powers  given  by 
law  to  a  district  judge. 


DISTRICT    COURTS.  47 

Adjournment  in  case  of  non-attendance  of  a  judge. — Sec. 
583.  If  the  judge  of  any  district  court  is  unable  to  attend  at  tlie 
commencement  of  any  regular,  adjourned  or  special  term,  the  court 
may  be  adjourned  by  the  marshal,  by  virtue  of  a  written  order  di- 
rected to  him  by  the  judge,  to  the  next  regular  term,  or  to  any  ear- 
lier day,  as  the  order  may  direct. 

The  same  in  certain  states. — Sec.  584.  If  the  judge  of  any 
district  court  in  Alabama,  California,  Georgia,  Indiana,  Iowa, 
Kentucky,  North  Carolina,  Tennessee  or  West  Virginia  is  not 
present  at  the  time  for  opening  the  court,  the  clerk  may  open  and 
adjourn  the  court  from  day  to  day  for  four  days  ;  and  if  the  judge 
does  not  appear  by  two  o'clock  after  noon  of  the  fourth  day,  the 
clerk  shall  adjourn  the  court  to  the  next  regular  term.  But  this 
section  is  subject  to  the  provisions  of  the  preceding  and  next 
sections. 

Adjournment  in  Indiana  and  Kentucky. — Sec.  585.  In 
the  districts  of  Indiana  and  Kentucky,  the  district  judge,  in  the 
case  provided  in  the  preceding  section,  may,  by  a  written  order  to 
the  clerk  within  the  first  three  days  of  his  term,  adjourn  the  district 
court  to  a  future  day  within  thirty  days  of  the  first  day.  The 
clerk  shall  give  notice  of  such  adjournment  by  posting  a  copy  of 
said  order  on  the  front  door  of  the  court  house  where  the  court 
is  to  be  held. 

Intermediate  terms  in  California,  Iowa  and  Tennessee. 
— See.  586.  Whenever  the  judge  of  any  district  court  in  the  dis- 
tricts of  California,  Iowa  and  Tennessee  fails  to  hold  any  regular 
term  thereof,  it  shall  be  his  duty,  if  it  appears  that  the  business  of  the 
court  requires  it,  to  hold  an  intermediate  term.  Such  intermediate 
term  shall  be  appointed  by  an  order  under  his  hand  and  seal,  ad- 
dressed to  the  clerk  and  marshal  at  least  thirty  days  previous  to 
the  time  fixed  therein  for  holding  it,  and  the  order  shall  be  pub- 
lished the  same  length  of  time  in  the  several  newspapers  published 
within  such  districts  respectively.  And  at  such  intermediate  term 
the  business  of  the  court  shall  have  reference  to  and  be  proceeded 
with  in  the  same  manner  as  if  it  were  a  regular  term. 

Business  certified  to  circuit  court  in  case  of  disabil- 
ity OF  district  judge. — Sec.  587.  When  satisfactory  evidence 
is  shown  to  the  circuit  judge  of  any  circuit,  or,  in  his  absence,  to 
the  circuit  justice  allotted  to  the  circuit,  that  the  judge  of  any  dis- 


48  FEDERAL    PLEADIXit,    PRACTICl-:    AND    PROCEDURE. 

trict  therein  is  disabled  to  hold  a  district  court,  and  to  perform 
the  duties  of  his  office,  and  an  application  accordingly  is  made  in 
writing  to  such  circuit  judge  or  justice,  by  the  district  attorney  or 
marshal  of  the  district^  the  said  judge  or  justice,  as  the  case  may 
be,  may  issue  his  order  in  the  nature  of  a  certiorari,  directed  to  the 
clerk  of  such  district  court,  requiring  him  forthwith  to  certify  into 
the  next  circuit  court  to  be  held  in  said  district  all  suits  and  pro- 
cesses, civil  and  criminal,  depending  in  said  district  court,  and 
undetermined,  with  all  the  proceedings  thereon,  and  all  the  files 
and  papers  relating  thereto.  Said  order  shall  be  immediately 
published  in  one  or  more  newspapers  printed  in  said  district,  at 
least  thirty  days  before  the  session  of  such  circuit  court,  and  shall 
be  sufficient  notification  to  all  concerned  ;  and  thereupon  the  circuit 
court  shall  proceed  to  hear  and  determine  the  suits  and  processes 
so  certified.  And  all  bonds  and  recognizances  taken  for,  or  return- 
able to,  such  district  court,  shall  be  held  to  be  taken  for,  and 
returnable  to,  said  circuit  court,  and  shall  have  the  same  effect 
therein  as  they  could  have  had  in  the  district  court  to  which  they 
were  taken.     (See  §  637.) 

Suits  brought  in  district  court  after  order  to  certify 
TO  CIRCUIT  COURT. — See.  588.  When  an  order  has  been  made  as 
provided  in  the  preceding  section,  the  clerk  of  the  district  court 
shall  continue,  during  the  disability  of  the  district  judge,  to  certify, 
as  aforesaid,  all  suits,  pleas  and  processes,  civil  and  criminal,  there- 
after begun  in  said  court,  and  to  transmit  them  to  the  circuit  court 
next  to  be  held  in  that  district ;  and  the  said  court  shall  proceed  to 
hear  and  determine  them  as  provided  in  said  section  ;  provided, 
that  when  the  disability  of  the  district  judge  ceases  or  is  removed, 
the  circuit  court  shall  order  all  such  suits  and  proceedings  then 
pending  and  undetermined  therein,  in  which  the  district  courts 
have  an  exclusive  original  cognizance,  to  be  remanded,  and  the 
clerk  of  such  court  shall  transmit  the  same,  with  all  matters  relating 
thereto,  to  the  district  court  next  to  be  held  in  that  district ;  and  the 
same  proceedings  shall  then  be  had  in  the  district  court  as  would 
have  been  had  if  such  suits  had  originated  or  been  continued  therein. 

Construction  of  the  foregoing  section. — The  language  of 
the  statute  evidently  supposes  a  district  judge  in  existence  to  whom 
the  causes  may  be  remanded.  It  does  not  direct  a  certiorari  on 
his  death,  but  on  his  disability.     It  does  not  suppose  a  vacancy, 


DISTRICT    COURTS.  49 

but  an  incumbency,  in  the  office.  The  meaning  of  the  statute  must 
be  that  while  there  is  a  judge  in  office  who  is  disabled  to  hold  a 
court,  his  duties  shall  be  performed  by  the  circuit  court  during  the 
disability.  With  his  death  the  disability  ceases,  a  vacancy  ensues 
in  the  office,  and  a  new  appointment  awakens  in  full  vigor  the 
powers  of  the  district  court. ^ 

P0V7ERS     OF     DISTRICT     JUDGE     VESTED     DURING     DISABILITY    IN 

CIRCUIT  JUDGE. — See.  589.  In  the  case  provided  in  the  two  pre- 
ceding sections,  the  circuit  judge,  and  in  his  absence  the  circuit 
justice,  shall  have  and  exercise,  during  such  disability,  all  the 
powers  of  every  kind  vested  by  law  in  such  district  judge.  But 
this  provision  does  not  require  them  to  hold  any  special  court,  or 
court  of  admiralty,  at  any  other  time  than  that  fixed  by  law  for 
holding  the  circuit  court  in  said  district. 

Preparatory  examinations  and  orders  in  admiralty  cases 

»-jBY  the  clerk. — Sec.  590  (as  amended  by  act  of  February  18,  1875, 

T^ch.  80,  18  Stat.  317).     When  the  business  of  a  district  court  is 

^>certified  into  the  circuit  court  on  account  of  the  disability  of  the 

^  'district  judge,   the  district  clerk  shall  be  authorized,  by  order  of 

.the  circuit  judge,  or,  in  his  absence,  of  the  circuit  justice  within 

Ph  whose  circuit  such  district   is   included,  to  take,  during  such  dis- 

<^ ability,  all  examinations  and  depositions  of  witnesses,  and  make  all 

necessary  rules  and  orders,  preparatory  to  the  final  hearing  of  all 

causes  of  admiralty  and  maritime  jurisdiction. 

District  judge  designated  to  perform  duties  of  disabled 
JUDGE. — Sec.  591.  When  any  district  judge  is  prevented,  by 
any  disability,  from  holding  any  stated  or  appointed  term  of  his 
district  court,  or  of  the  circuit  court  in  his  district,  in  the  ab- 
senCj^  of  the  other  judges,  and  that  fact  is  made  to  appear  by  the 
certificjteof  the  clerk,  under  the  seal  of  the  court,  to  the  circuit 
ju(^ge,  jir,jjn  his  absence,  to  the  circuit  justice  of  the  circuit  in 
whi<ii  ^e^istrict  lies,  such  circuit  judge  or  justice  may,  if  in  his 
jud^bimitjie  public  interests  so  require,  designate  and  appoint  the 
jud^  S  ^y  other  district  in  the  same  circuit  to  hold  said  courts, 
and  i;o5is2harge  all  the  judicial  duties  of  the  judge  so  disabled, 
dui^^ufli  disability.  Such  appointment  shall  be  filed  in  the 
desk's  office,  and  entered  on  the  minutes  of  the  said  district  court, 
and  a  certified  copy  thereof,  under  the  seal  of  the  court,  shall  be 

^  Story,  J.,  in  Ex  parte  U.  S.,  I  Gallis.  338. 


50  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

transmitted  by  the  district   clerk   to  the  judge  so  designated  and 
appointed. 

Designation  of  another  judge  in  case  of  accumulation 
OF  BUSINESS. — Sec.  592.  When,  from  the  accumulation  or  urgency 
of  business  in  any  district  court,  the  public  interests  require 
the  designation  and  appointment  hereinafter  provided,  and  the 
fact  is  made  to  appear,  by  the  certificate  of  the  clerk,  under  the 
seal  of  the  court,  to  the  circuit  judge,  or,  in  bis  absence,  to  the 
circuit  justice  of  the  circuit  in  whicb  the  district  lies,  such  circuit 
judge  or  justice  may  designate  and  appoint  the  judge  of  any  other 
district  in  the  same  circuit  to  have  and  exercise  within  the  district 
first  named  the  same  powers  that  are  vested  in  the  judge  thereof; 
and  each  of  the  said  district  judges  may,  in  case  of  such  appoint- 
ment, hold  separately  at  the  same  time  a  district  or  circuit  court 
in  such  district,  and  discharge  all  the  judicial  duties  of  a  district 
judge  therein;  but  no  such  judge  shall  hear  appeals  from  the  dis- 
trict court. 

When  designation  of  another  judge  by  the  chief  justice 
OF  THE  United  States. — Sec.  593.  If  the  circuit  judge  and  circuit 
justice  are  absent  from  the  circuit,  or  are  unable  to  execute  the 
provisions  of  either  of  the  two  preceding  sections,  or  if  the  district 
judge  so  designated  is  disabled  or  neglects  to  hold  the  courts  and 
transact  the  business  for  which  he  is  designated,  the  district  clerk 
shall  certify  the  fact  to  the  Chief  Justice  of  the  United  States, 
who  may  thereupon  designate  and  appoint,  in  the  manner  afore- 
said, the  judge  of  any  district  within  such  circuit  or  within  any 
circuit  next  contiguous;  and  said  appointment  shall  be  transmitted 
■  to  the  district  clerk,  and  be  acted  upon  by  him  as  directed  in  the 
preceding  section. 

Revocation  and  new  appointments. — Sec.  594.  The  circuit 
judge  or  circuit  justice,  or  the  Chief  Justice,  as  the  case  may  be, 
may  from  time  to  time,  if  in  his  judgment  the  public  interests  so 
require,  make  a  Tiew  designation  and  appointment  of  any  other 
district  judge  within  the  said  circuits,  for  the  duties  and  with  the 
powers  mentioned  in  the  three  preceding  sections,  and  to  revoke 
any  previous  designation  and  appointment. 

Duty  of  district  judge  to  comply  with  the  designation 
AND  appointment. — Scc.  595.  It  shall  be  the  duty  of  the  district 
judge  who   is   designated  and  appointed  under  either   of  the  four 


DISTRICT    COURTS.  ol 

preceding  sections  to  discharge  all  the  judicial  duties  for  which  he 
is  so  appointed,  during  the  continuance  of  such  disability,  or,  in 
the  case  of  an  accumulation  of  business,  during  the  time  for  which 
he  is  so  appointed ;  and  all  the  acts  and  proceedings  in  the  courts 
held  by  him,  or  by  or  before  him,  in  pursuance  of  said  provisions, 
shall  have  the  same  eifect  and  validity  as  if  done  by  or  before  the 
district  judge  of  the  said  district. 

Designation  of  judge  when  public  interest  requires  it. — 
See.  596.  It  shall  be  the  duty  of  every  circuit  judge,  whenever 
in  his  judgment  the  public  interest  so  requires,  to  designate  and 
appoint,  in  the  manner  and  with  the  powers  provided  in  section 
five  hundred  and  ninety-one,  the  district  judge  of  any  judicial  dis- 
trict within  his  circuit  to  hold  a  district  or  circuit  court  in  the 
place  or  in  aid  of  any  other  district  judge  within  the  same  circuit; 
and  it  shall  be  the  duty  of  the  district  judge  so  designated  and 
appointed,  to  hold  the  district  or  circuit^  as  aforesaid,  Avithout  any 
other  compensation  than  his  regular  salary  as  established  by  law, 
except  in  the  case  provided  in  the  next  section. 

Expenses  of  judge  designated  to  southern  district  of 
New  York. — Sec.  597.  Whenever  a  district  judge  from  another 
district  holds  a  district  or  circuit  court  in  the  southern  district  of 
New  York,  in  pursuance  of  the  preceding  section,  his  expenses, 
not  exceeding  ten  dollars  la  day,  certified  by  him,  shall  be  paid  by 
the  marshal  of  said  district,  as  a  part  of  the  expenses  of  the  court, 
and  shall  be  allowed  in  the  marshal's  account. 

Disability  of  judges  in  Florida. — Sec.  598.  When  a  cer- 
tificate of  the  judge  of  either  of  the  districts  of  Florida,  stating 
that  he  is  disabled  to  hold  any  regular,  special  or  adjourned 
term  of  the  court  of  such  district,  and  requesting  the  judge  of  the 
other  district  to  hold  the  same,  is  filed  in  the  clerk's  office  of  the 
place  where  it  is  to  be  held,  the  judge  of  the  other  district  is  au- 
thorized to  hold  such  courts,  and  to  exercise  all  the  powers  of 
district  judge,  in  the  district  of  the  judge  so  certifying. 

Disability  of  judges  in  New  York. — Sec.  599.  Whenc/er 
the  judge  of  the  northern  district  of  New  York  is  disabled 
to  perform  the  duties  of  his  office,  it  shall  be  the  duty  of  the 
judge  of  the  southern  district,  upon  receiving  from  him  notice 
thereof,  to  hold  the  district  court,  and  to  perform  all  the  duties 
'  The  word  court  omitted. 


52      FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

of  district  judge  for  such  district.  And  whenever  the  judge  of  the 
southern  district  is  so  disabled,  it  shall  be  tlie  duty  of  the  judge 
of  the  eastern  district,  upon  a  like  notice,  to  hold  the  district 
court,  and  to  perform  all  the  duties  of  district  judge  for  the 
southern  district.  In  such  cases  the  said  judges,  respectively,  shall 
have  the  same  powers  as  are  vested  in  the  judge  so  disabled. 

When  j'udge  of  eastern  district  of  New  York  may  act  in 
SOUTHERN. — Sec.  600.  Whenever  the  judge  of  the  southern  district 
of  New  York  deems  it  desirable,  on  account  of  the  pressure  of 
public  business  or  other  cause,  that  the  judge  of  the  eastern  district 
shall  perform  the  duties  of  a  district  judge  in  the  southern  district, 
an  order  to  that  effect  may  be  entered  upon  the  records  of  the 
district  court  thereof;  and  thereupon  the  judge  of  the  eastern  dis- 
trict shall  have  power  to  hold  the  district  court,  and  to  perform 
all  the  duties  of  district  judge  for  the  southern  district. 

When  a  judge  is  interested  in  a  suit  pending  before  him. 
— Sec.  601.  Whenever  it  appears  that  the  judge  of  any  district 
court  is  in  any  way  concerned  in  interest  in  any  suit  pending 
therein,  or  has  been  of  counsel  for  either  party,  or  is  so  related  to 
or  connected  with  either  party  as  to  render  it  improper,  in  his 
opinion,  for  him  to  sit  on  the  trial,  it  shall  be  his  duty,  on  applica- 
tion by  either  party,  to  cause  the  fact  to  be  entered  on  the  records 
of  the  court ;  and  also  an  order  that  an  stuthenticated  copy  thereof, 
with  all  the  proceedings  in  the  suit,  shall  be  forthwith  certified  to 
the  next  circuit  court  for  the  district ;  and  if  there  be  no  circuit 
court  therein,  to  the  next  circuit  court  in  the  state;  and  if  there 
be  no  circuit  court  in  the  state,  to  the  next  convenient  circuit 
court  in  an  adjoining  state;  and  the  circuit  court  shall,  upon  the 
filing  of  such  record  with  its  clerk,  take  cognizance  of  and  proceed 
to  hear  the  case,  in  like  manner  as  if  it  had  originally  and  right- 
fully been  commenced  therein.     (See  §  637.) 

Continuances  by  vacancy  in  office  of  the  judge. — Sec.  602. 
When  the  ofiice  of  judge  of  any  district  court  is  vacant,  all  pro- 
cess, pleadings  and  proceedings  pending  before  such  court  shall  be 
continued  of  course  until  the  next  stated  term  after  the  appointment 
and  qualification  of  his  successor;  except  when  such  first- mentioned 
term  is  held  as  provided  in  the  next  section. 

Vacancy  in  office  of  district  judge. — Sec.  603.  When  the 
office  of  district  judge  is  vacant  in  any  district  in  a  state  containing 


DISTKICT    COURTS.  53 

two  or  more  districts,  the  judge  of  the  other  or  of  either  of  the 
other  districts  may  hold  the  district  court,  or  the  circuit  court  in 
case  of  the  sickness  or  absence  of  the  other  judges  thereof,  in  the 
district  "where  the  vacancy  occurs,  arJd  discharge  all  the  judicial 
duties  of  judge  of  such  district  during  such  vacancy ;  and  all  the 
acts  and  proceedings  in  said  courts,  by  or  before  such  judge  of  an 
adjoining  district,  shall  have  the  same  effect  and  validity  as  if  done 
by  or  before  a  judge  appointed  for  such  district. 


CHAPTER  V. 

JURISDICTION    OF    THE    DISTRICT    COURTS. 

§  34,  Jurisdiction,  special  and  limited. — Having  treated  of  the 
organization  and  constitution  of  the  district  courts  and  of  the 
terms  and  sessions  thereof,  we  will  now  proceed  to  consider  their 
jurisdiction  and  point  out  some  of  the  general  rules  of  practice  and 
procedure  therein.  The  jurisdiction  of  these  courts  is  less  varied 
and  extensive  than  that  of  the  circuit  courts,  and  it  has  remained 
substantially  the  same  ever  since  their  original  institution ;  whereas 
the  jurisdiction  of  the  circuit  courts  has  been  much  enlarged  with- 
in the  last  few  years,  and  especially  by  the  liberal  provisions  of 
statutes  for  the  removal  of  causes  thereto  from  the  state  courts. 
The  business  of  the  district  courts  is  mainly  limited  to  the  cogni- 
zance of  certain  crimes  and  oifences  under  the  laws  of  the  United- 
States,  to  proceedings  for  the  recovery  of  penalties  and  forfeitures, 
and  to  matters  of  admiralty  and  maritime  jurisdiction.  The  crim- 
inal jurisdiction  of  these  courts  is  limited  to  offences  which  are  ex- 
pressly made  such  by  the  statutes  of  the  United  States ;  and  they 
have,  in  a  strict  sense,  no  common  law  jurisdiction  of  crimes,  or 
jurisdiction  of  the  crimes  known  to  the  common  law,  unless  such 
jurisdiction  is  conferred  by  some  act  of  Congress.^  But  they  have 
general  admiralty  and  maritime  jurisdiction,  and  in  the  exercise 
thereof  they  are  only  subject  to,  and  controlled  by,  the  general 
principles  of  admiralty  and  maritime  jurisprudence,  unless 
otherwise  provided  by  statute  law,  which  we  shall  hereafter  con- 
sider. 

§  35.  Jurisdiction  of  crimes  and  offences. — In  relation  to  the 
jurisdiction  of  the  district  courts  of  crimes  and  offences,  the  stat- 
ute provides  that  they  shall  have  jurisdiction  "  of  all  crimes  and 
offences  cognizable  under  the  authority  of  the  United  States,  com- 
mitted within  their  respective  districts,  or  upon  the  high  seas,  the 

-  United  States  v.  Barney,  5  Blatch.  nal  jurisdiction  they  possess  the  inci- 

294;  United  States  t7.  Hudson,  7  Cr.  dental  common  law  authority  to  tine 

32  ;  United  States  v.  Cooledge,  1  Wh.  for  contempts  and  imprison  for  cou- 

415  ;    United  States  v.  Bevans.  3  Wh.  tumacy.     Id. 
336.     In  the  exercise  of   their  crimi- 


DISTRICT    COURTS.  55 

punishment  of  which  is  not  capital,  except  in  the  cases  mentioned 
in  section  5412,  title  Crimes."' 

In  cases  where  the  punishment  is  capital,  and  in  those  cases  em- 
braced in  section  5412  of  the  Revised  Statutes,  the  circuit  courts 
have  exclusive  jurisdiction,  and  in  all  other  cases  of  crimes  and 
offences  the  district  courts  have  jurisdiction  concurrent  with  the 
circuit  courts.^ 

The  jurisdiction  thus  conferred  on  the  federal  courts  in  criminal 
cases  is  exclusive  of  any  jurisdiction  of  the  courts  of  the  several 
states.  The  state  courts  cannot,  consistently  with  the  Constitution 
of  the  United  States,  exercise  jurisdiction  of  offences  against  the  laws 
of  the  United  States;  nor  can  such  jurisdiction  be  delegated  to 
them.^  Nor  can  the  state  tribunals  or  its  judges  in  any  manner  in- 
terfere with  the  exercise  of  the  jurisdiction  of  the  district  courts  in 
criminal  cases,  by  habeas  corpus  or  otherwise ;  nor  can  the  validity 
of  the  proceedings  of  such  courts  be  in  any  manner  reviewed  or 
called  in  question  by  any  state  court  or  judge  thereof.* 

§  36.  In  case  of  piracy,  penalties  and  forfeitures. —  The  district 
courts  have  jurisdiction  of  all  cases  arising  under  any  statute  of 
the  United  States  for  the  punishment  of  piracy,  when  there  is  no 
circuit  court  held  in  the  district  of  such  court ;  ^  and  of  all  suits 
for  penalties  and  forfeitures  incurred  under  any  law  of  the  United 
States.^  But  we  have  already  noticed  that  the  circuit  courts  have 
concurrent  jurisdiction  of  all  crimes  and  offences  cognizable  in  the 
district  courts,  which  we  shall  hereafter  more  particularly  con- 
sider.^ 

§  37.  Suits  by  the  United  States  or  officers  ;  limitation  of  suits. 
— It  is  a  familiar  doctrine  of  the  law  that  a  sovereign  cannot  be 
sued  in  his  own  court  without  his  consent.  This  doctrine  is  appli- 
cable to  the  United  States  as  a  sovereign  authority,  and  not  until 
the  creation  of  a  court  by  an  act  of  Congress,  known  as  the  Court 
of  Claims,  and  the  giving  of  it  cognizance  of  certain  causes  r)f  action 
against  the  United  States,  of  which  we  shall  treat  hereafter,  couM 
the  government  be  sued  in  the  federal  courts.^  But  the  statute 
gives  the  district  courts    jurisdiction    "  of  suits  at    common    law 

^  Rev.  Stat.  §  5G3,  sub.  1.  *  Ahleman  v.  Booth,  21  How.  5U7. 

2  Id.  I  629,  sub.  20.  *  Rev.  Stat.  §  563,  sub.  2. 

^  United  States  v.  Ilalliday,  3  Wall.  «  Rev.  Stat.  |  563,  sub.  3. 

407  ;  Stearns  v.  United  States,  2  Paine  ''  Rev.  Stat.  §  629,  sub.  20. 

(C.  C.)  300.  »  See  post,  ch.  sviii. 


56       FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

brought  by  the  United  States,  or  by  any  officer  thereof  authorized 
by  law  to  sue."^ 

The  jurisdiction  thus  conferred  upon  the  district  courts  is,  how- 
ever, not  exclusive  ;  but  the  United  States,  as  a  body  corporate  and 
sovereign  authority,  may  institute  suits,  like  other  corporate  bodies, 
in  any  court  of  any  state  in  the  Union  ;  and  in  this  respect  she  has 
the  same  rights  and  is  entitled  to  the  same  remedies  as  natural  per- 
sons.^ She  may  maintain  a  suit  at  common  law  in  assumpsit  or 
trespass ;  and  if  the  suit  is  to  recover  on  negotiable  paper,  she  pos- 
sesses the  same  rights  and  incurs  the  same  liabilities  as  natural 
persons  under  similar  circumstances.^ 

§  38.  Suits  in  equity  to  enforce  internal  revenue  taxes. — The  dis- 
trict courts  have,  also,  jurisdiction  "  of  all  suits  in  equity  to  enforce 
the  lien  of  the  United  States  upon  any  real  estate  for  any  internal 
revenue  tax,  or  to  subject  to  the  payment  of  any  such  tax  any  real 
estate  owned  by  the  delinquent,  or  in  which  he  has  any  right,  title 
or  interest;"*  and  "of  all  suits  for  the  recovery  of  any  forfeiture 
or  damages  under  section  thirty-four  hundred  and  ninety"  of  the 
Revised  Statutes,  and  all  such  suits  may  be  tried  and  determined 
by  any  district  court  within  whose  jurisdictional  limits  the  defend- 
ant may  be  found.®  And  in  all  cases  where  a  cause  of  action 
arises  under  the  postal  laws  of  the  United  States,  they  have  con- 
current jurisdiction  with  the  circuit  courts.^ 

§  39.  Admiralty  and  prize  causes. — The  most  important  function 
of  the  district  courts,  however,  is  that  which  relates  to  their  ad- 
miralty and  maritime  jurisdiction.  The  great  extent  of  our  sea- 
coast,  and  the  magnitude  of  our  shipping  interests  both  coast-wise 
and  foreign,  naturally  causes  frequent  and  important  controversies 
of  an  admiralty  and  maritime  character,  and  the  jurisdiction  of 
these  courts  is  frequently  invoked  in  such  cases.  Their  original  ad- 
miralty and  maritime  jurisdiction  is,  with  few  exceptions,  exclusive 
of  all  other  federal  courts,  and  in  all  cases  exclusive  of  the  state  tri- 
bunals.^   On  this  subject  the  statute  provides  that  these  courts  shall 

'  Rev.  Stat.  ^  563,  sub.  4.  The  same  377  ;  United  States  v.  Gear,    3  How. 

jurisdiction  is  also  conferred  by  stat-  120  ;  United  States  v.  Dunn,  6  Pet.  51  ; 

ute  upon   the  circuit  courts.        Rev.  The  Floyd  Acceptances,  7  Wall.  666. 

Stat.  §  629,  sub.  3.  *  Rev.  Stat.  |  563,  sub.  5. 

^  Duyjran  v.  United  States,   3  Wh.  ^  j^^^y   g^j^j^  |  553^  gub.  6. 

172  ;  Cotton  v.  United  States,  1 1  How.  «  Rev.  Stat.  |  563,  sub.  7  ;  Id.  g  629. 

229.  '  The  Moses  Taylor,  4  Wall.  411  ; 

8  United   States  v.  Bank,    15    Pet.  The  Hine,-4  Wall.  555;  The  Steam- 


DISTRICT    COURTS.  57 

have  jurisfliction  "  of  all  civil  causes  of  admiralty  and  maritime 
jurisdiction,  saving  to  suitors  in  all  cases  the  right  of  a  common 
law  remedy,  where  the  common  law  is  competent  to  give  it ;  and  of 
all  seizures  on  land  and  on  waters  not  within  admiralty  and  mari- 
time jurisdiction.  And  such  jurisdiction  shall  be  exclusive,  except 
in  the  particular  cases  where  jurisdiction  of  such  causes  and  seiz- 
ures is  given  to  the  circuit  courts."  ^  Exclusive  cognizance  is  also 
given  to  the  district  courts  of  all  prizes  brought  into  the  United 
States,  except  prizes  taken  in  pursuance  of  the  provisions  of  the 
statute  authorizing  the  confiscation  of  property  employed  in  aid  of 
any  insurrection  against  the  government  of  the  United  States,  in 
which  cases  the  circuit  courts  have  also  concurrent  jurisdiction.^ 
The  jurisdiction  of  the  federal  courts  in  prize  causes  is  necessarily 
exclusive  of  any  authority  or  cognizance  by  the  state  courts,  as  all 
such  controversies  must  arise  under  the  Constitution  and  laws  of 
the  United  States.^ 

§  40.  General  principles  relating  to  admiralty. — It  does  not  come 
within  the  scope  of  this  treatise  to  treat  fully  of  the  doctrines  and 
principles  of  admiralty  and  maritime  law.  It  will  be  mainly  our 
purpose  to  notice  those  changes  and  modifications  of  the  general 
doctrines  and  principles,  by  statutes  and  rules  of  the  federal  courts 
and  the  practice  therein. 

The  jurisdiction  of  courts  in  admiralty  rests  upon  two  broad 
grounds ;  one  the  subject-matter  of  contracts,  the  other  locality,  in 
torts.  To  give  jurisdiction  in  case  of  contract,  it  is  necessary  that 
the  contract  be  of  a  maritime  character,  as  understood  and  inter- 
preted in  the  admiralty ;  such  as  a  contract  to  carry  merchandise 
or  passengers  on  the  high  seas  or  navigable  waters  ;  ^  or  for  seamen's 
wages  ;^  or  for  the  pilot's  services;^  or  for  material  or  supplies  fur- 
nished in  a  foreign  port,  and  the  like.^ 

boat  Co.  V.  Chase,  16  Wall.  529  ;  The  Central  National  Bank,  47  Md.  217  ; 

St.  Lawrence,  1  Black   526 ;  The  Isa-  Blitz  v.  Columbia  National  Bank,  87 

bella,  1  Brown's  Ad.  96  ;  Railroad  Co.  Pa.  87.     See  contra  in    state   courts, 

V.  Whitton,  13  Wall.   270 ;  Jansen  v.  Ely  v.  Peck,  7  Conn.  239  ;  M.  R.  Tel- 

The  Magdalena,  Bee  11.  ejrraph  Co.  v.  First  National  Bank,  74 

1  Rev.  Stat.  ^  563,  sub.  8.  111.217. 

2  Rev.   Stat.  §  563,  sub.  8,  9;    and        *  The   Moses  Taylor,  4  Wall.  411  ; 
amendment,  February  18,  1875  ;  Rev.  Morevi^ood  v.  Enequist,  23  How.  491. 
Stat.  §  629,  sub.  6  ;  Rev.  Stat.  §^5308,         ^  Sheppard  v.  Taylor,  5   Pet.  675  ; 
5309.  The  Gazelle,  1  Sprai^ue  378.  •: ! 

3  Rev.  Stat.  |  711,  sub.  2,  4  ;  United  «  Hobart  v.  Drogan,  10  Pet.  108  ; 
States  V.  Lathrop,  17  Johns.  4;  -Jack-  Ex  parte  McNiel,  13  Wall.  236. 

son  V.  Rose,  2  Va.  Cas.  34  ;  Ordway  v.         ''  The  Robert  Fulton,  1  Paine  620  : 


58  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

But  contracts  for  material  or  supplies  furnished  in  the  original 
construction  of  a  vessel  are  not  maritime  contracts.^  And  where 
two  parties  joined  in  an  adventure,  in  which  one  was  to  contribute 
his  skill,  labor  and  experience,  and  the  other  was  to  furnish  a 
vessel,  and  each  was  to  have  a  certain  portion  of  the  profits,  this 
was  held  not  to  be  a  maritime  contract  that  could  confer  admiralty 
jurisdiction  upon  the  court.-  And  it  may  be  observed,  generally, 
that  the  admiralty  has  no  jurisdiction  at  all  in  mere  matters  of 
account  between  the  part  owners  of  vessels,  although  they  may 
relate  purely  to  maritime  affairs.^ 

§  41.  Maritime  liens. — The  jurisdiction  of  the  district  courts  in 
admiralty  is  frequently  exercised  for  the  purpose  of  enforcing  liens 
created  by  virtue  of  maritime  contracts.  These  courts  have  juris- 
diction "  of  all  causes  of  admiralty  and  maritime  jurisdiction,  saving 
to  suitors  in  all  cases  the  right  of  a  common  law  remedy,  where  the 
common  law  is  competent  to  give  it."  But  the  common  law  courts 
and  remedies  afford  no  means  of  enforcing  maritime  liens.  The 
Constitution  of  the  United  States  and  acts  of  Congress  have  vested 
the  admiralty  and  maritime  powers  exclusively  in  the  federal  courts 
of  the  United  States,  and  hence  no  state  has  authority  to  constitute 
courts  with  these  powers ;  and  the  common  law  remedies  are  not 
applicable  to  the  enforcement  of  liens  by  proceedings  in  rem.  The 
provision,  therefore,  "  saving  to  suitors  in  all  cases  the  right  of  a 
common  law  remedy,  where  the  common  law  is  competent  to  give 
it,"  can  give  state  or  federal  courts,  as  courts  of  law,  jurisdiction 
only  of  suits  on  maritime  contracts,  where  the  proceedings  for  the 
non-fulfillment  of  such  contracts  are  in  personajn,  and  where  the 
libellant  is  willing  to  waive  the  lien.  But  in  such  proceedings  the 
party  is  entitled  to  the  benefit  of  the  laws  of  the  state  relating  to 
attachments,  to  secure  his  claim,  under  the  same  circumstances  as 
other  suitors  in  the  courts."*  A  contract  to  build  a  ship,  or  to  fur- 
nish materials  for  this  purpose,  is  not  a  maritime  contract  ;  but  the 

The  St.  Lawrence,  1  Black  522 :   The        =*  Id.      See  also  Davis   v.   Child,  2 

General  Smith,  4  Wh.  433 ;  Zane  v.  Ware  78  ;  Atkyns  v.  Burrows,  1  Pet. 

The  President,  4  Wash.  453.  Ad.  244  ;  Kellum  v.  Emerson,  2  Curt. 

1  People's  Ferry  Company  v.  Beers,  79 ;  Hazard  v.   Ilowland,   2  Sprague 
20  How.  393  ;  Roach  v.  Chapman,  22  68  ;  Grant  v.  Poillon,   20   IIow.   163  ; 
How.    129;    Edwards    t'.    Elliott,    21  Daily  t'.  Doe,  3  Fed.  Rep.  903. 
Wall.   532;    The  Revenue  Cutter,  4        *  The   Belfast,    7    Wall.    624;    The 
Saw.  143.  Lottawanna,  21  Wall.  558  ;  The  Hine 

2  Ward  I'.  Thompson,  22  How.  330;  v.  Trevor,  4  Wall.  555;  s.  c,  17  Id. 
Steamboat  Orleans,  11  Pet.  175.  349. 


DISTRICT    COURTS.  59 

legislatures  of  the  states  may  create  liens  on  such  contracts  and 
provide  means  for  their  enforcement,  as  this  would  not  be  incon- 
sistent with  the  admiralty  jurisdiction  of  the  district  courts  of  the 
United  States  or  amount  to  a  regulation  of  commerce.^ 

§  42.  What  liens  by  contract  will  be  enforced. — Among  the  liens 
growing  out  of  contracts,  which  may  be  enforced  on  the  admiralty 
side  of  the  court,  we  may  mention  the  liens  which  exist  in  favor  of 
shippers,  upon  the  vessels  employed  in  the  transportation  of  their 
goods  and  merchandise.  The  lien  exists  as  security  for  the  proper 
fulfillment  of  the  contract  of  affreightment,  which  usually  binds  the 
carrier  to  duly  transport,  safely  keep  and  properly  deliver  the 
goods  and  merchandise  described  in  the  contract.  A  lien  also 
exists  in  favor  of  material-men,  in  certain  cases,  as  security  for  the 
price  or  value  of  material  furnished.^  By  the  general  principles  of 
admiralty  law,  jurisdiction  did  not  attach  to  contracts  in  favor  of 
material-men  for  materials  furnished  in  the  original  construction  of 
vessels,  or  for  materials  or  supplies  furnished  thereafter  in  a  home 
port.  But  it  is  generally  conceded  that  Congress  has  power  to 
extend  the  jurisdiction  of  the  federal  courts  to  such  cases,  although 
it  has  not,  nor  has  any  state,  power  to  limit  the  jurisdiction  of  the 
federal  courts  in  admiralty.^  The  question  was  recently  presented 
to  the  Supreme  Court,  whether  the  liens  of  material-men,  created 
by  the  laws  of  a  state,  can  be  enforced  in  admiralty  in  the  district 
courts  of  the  United  States.  The  court  determined  that  Congress 
might,  under  the  power  to  regulate  commerce,  authorize  liens  in 
such  cases,  and  that  such  legislation  would  supersede  any  state 
legislation  on  the  subject,  and  that  in  the  absence  of  such  action  on 
the  part  of  Congress  the  states  might  make  valid  laws  on  the  sub- 
ject, which  would  be  enforced  by  the  federal  courts  in  the  exercise 
of  their  admiralty  jurisdiction,  although  authority  could  not  be 
conferred  upon  the  state  courts  for  this  purpose.* 

§  43.  Suits  by  material-men. — The  general  doctrine  in  admiralty 
is  that  a  party  furnishing  necessary  supplies  or  repairs  to  a  ship  in 

.    »  Edwards  r.  Elliott,  21  Wall.  532  ;  *  The   Lottawanna,  21    Wall.  55S  ; 

s.  c,  34  N.  J.  96  ;  The  St.  Lawrence,  1  Edwards  v.  Elliott,  21  Wall.  532.    See 

Black  522  ;  The  Chusan,  2  Story  456.  also  The  St.  Lawrence,  1  Black  522  ; 

^  The    Belfost,    7   Wall.   624 ;    The  The  Richard  Busteed,  1  Sprague  441  ; 

Maggie  PLammond,  9  Wall.  435  ;  The  Weaver   v.  The   Owens,  1   Wall.  Jr. 

Bird  of  Paradise,  5  Wall.  545  ;  The  359 ;  The  Samuel  Strong,  6  McLean 

Eddy,  4  Wall.  1.  587  ;  The  General  Smith,  4  Wh.  438  ; 

^  the  Lottawanna,  21  Wall.  55S.  The  Maggie  Hammond,  9  Wall.  435. 


60  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

a  foreign  port  may  enforce  a  lien  therefor  on  the  ship  in  a  court  of 
admiralty  jurisdiction  by  a  proceeding  in  rem^  or  that  he  may  waive 
his  right  to  a  lien  and  proceed,  as  we  have  seen,  against  the  master 
or  owner  in  ]jersonam.^ 

Under  a  rule  in  admiralty  in  this  country  the  doctrine  has  been 
extended  so  as  to  allow  the  enforcement  of  a  lien  "in  all  suits  by 
material-men  for  supplies  or  repairs  or  other  necessaries ;  and  in 
such  cases  the  libellant  may  proceed  against  the  ship  and  freight 
in  rem,  or  against  the  master  or  owner  in  personam.^ 

But  under  this  rule  it  has  been  held  that  in  every  case  of  a 
contract  for  supplies  to  a  vessel,  whether  domestic  or  foreign, 
being  a  maritime  contract,  process  in  rem  against  the  vessel,  or 
in  personam  against  the  master  or  owner,  may,  at  the  option  of 
the  libellant,  be  resorted  to  where  it  is  necessary  to  enforce  the 
contract.^ 

The  party  thus  entitled  to  a  lien  may,  as  we  have  seen,  waive  it, 
and  this  may  be  done  expressly  or  it  may  be  presumed  from  acts 
and  circumstances.  If  it  is  manifest  from  the  facts  of  the  case  that 
the  material-man  waived  the  lien  and  depended  upon  the  personal 
responsibility  of  the  master  or  owner  of  the  ship,  the  lien  would,  at 
least  as  to  the  intervening  rights  of  innocent  third  parties,  be 
treated  as  waived.  Where  a  promissory  note  was  given  for  the 
debt  incurred  for  supplies,  it  was  held  that  a  suit  to  enforce  a  lien 
for  them  could  not  be  maintained  if  the  note  was  not  tendered  or 
given  up  and  surrendered  to  the  defendant  at  or  before  the  hearing.* 
This  right,  however,  to  enforce  the  lien  has  been  held  to  exist  where 
a  bottomry  bond  in  part  void  was  executed  therefor  in  the  foreign 
port  where  the  supplies  and  material  were  furnished.^ 

The  giving  of  credit  for  necessary  supplies  does  not,  ordinarily, 
extinguish  the  lien  therefor,  nor  does  the  permission  of  the  ship  to 
depart  on  her  voyage  without  payment.  The  material-man  gen- 
erally has,  by  the  maritime  law,  a  threefold  remedy,  even  where  a 
lien  exists :  first,  against  the  vessel  in  rem ;  second,  against  the 
owners;    third,  against  the  master;    and  neither  remedy  will  be 

1  The  Aurora,  1  Wh.  96  ;  The  Gen-        ^  Adm.  Rule    12,  adopted   May   G, 

eral  Smith,  4  Wh.  438  ;   The  Robert  1872. 

Fulton,  1   Paine  620;    The  Ship  Vir-        =*  The     Steamship     Circassian,     11 

irin,  8  Pet.    538;    The    Patapsco,    13  Blatch.  473 ;  12  Am.  Law  Reg.  291. 
\Vall.  329 ;  The  Brig  Nestor,  1  Sum.         *  Ramsey  v.  Allege,  12  Wh.  611. 
73 ;   Andrews  v.  Wall,  3   How.  568  ;        ^  The  Ship  Virgin,  8  Pet.  538. 
Davis  V.  Child,  2  Ware  78. 


DISTRICT   COURTS.  61 

considered  waived  or  displaced  except  where  it  is  shown  that  the 
credit  was  given  exclusively  to  or  on  account  of  one  of  the 
others.^ 

The  district  courts  of  the  United  States  can  also  properly  take 
cognizance  of  a  lien  which  exists  by  the  maritime  law  of  other 
nations,  and  enforce  it  here  as  a  matter  of  comity,  although  all  the 
parties  to  the  suit  be  foreigners.^ 

In  all  cases,  however,  of  a  claim  of  a  lien  for  supplies  or  mate- 
rial furnished  to  a  ship  in  a  foreign  port,  it  seems  necessary  to  show 
that  the  supplies  or  material  were  necessary  to  enable  the  ship 
to  complete  her  voyage.  And  if  it  can  be  reasonably  presumed 
that  the  master  had  funds  or  that  the  owner  had  credit,  this  has 
been  held  to  be  sufficient  to  displace  the  lien.  But  when  the  lien 
is  reasonably  established,  it  would  evidently  require  strong  cir- 
cumstances of  confederation  on  the  part  of  the  material-man  with 
the  master,  amounting  to  a  fraud,  in  order  to  displace  the  lien  on 
that  ground  and  defeat  a  suit  for  its  enforcement.^  But  the  lien 
should  be  enforced  within  a  reasonable  time  after  the  debt  be- 
comes due,  or  it  will  not  avail  against  a  hand  fide  purchaser  with- 
out notice.* 

§  44.  Maritime  hypothecation. — According  to  the  doctrines  of 
admiralty  and  maritime  jurisprudence,  the  master  or  owner  may 
hypothecate  the  ship  in  a  foreign  port  to  procure  funds  for  neces- 
sary repairs  so  as  to  enable  her  to  proceed  and  complete  the  con- 
templated voyage.  This  is  usually  effected  by  what  is  denominated 
a  bottomry  bond,  as  the  advancement  is  made  on  the  faith  or  secu- 
rity of  the  bottom  of  the  ship.^  But  such  bond,  if  made  by  the 
master,  is  void  unless  the  advances  are  necessary  to  effectuate  the 
objects  of  the  voyage  or  the  safety  of  the  ship,  and  also  where  the 
supplies  or  repairs  could  have  been  procured  on  the  owner's  credit 
or  with  his  funds  at  the  place  where  they  were  furnished.  And 
in  order  to  recover  on  such  bond  it  is  usually  necessary  for  the 
libellant  to  furnish  satisfactory  evidence  that  the  money  was  ad- 
vanced after  due  inquiry  and  reasonable  grounds  of  belief  that  the 

1  The  Marion,  1  Story  68  ;  The  Nes-  Pritchard  &  Co.  v.  The  Lady  Horatio, 

tor.  ]  Sum.  73.  Bee's  Adm.  167. 

^  The  Masgie   Hammond,   9   Wall.  *  The  Barque  Chusan,  2  Sum.  456. 

435  ;  The  Schooner  Marion,  1    Story  *  Seldon  v.  Hendrickson,  1   Brock. 

68.  C.   C.  396;    Carrington  v.   Pratt,  18 

3  The    Patapsco,    13     Wall.    329;  How.  67.     See  also  ;^os<,  H^J. 


62  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

repairs  or  supplies  were  necessary  and  that  the  owner  was  without 
credit  or  funds  in  the  foreign  port.^ 

The  master  has  the  power  to  hypothecate  his  ship,  even  after  the 
original  voyage  has  heen  broken  up  by  capture  and  the  compulsory 
sale  of  her  cargo,  if  she  is  in  a  foreign  port  and  repairs  or  supplies 
are  necessary  to  enable  her  to  return  to  the  home  port.^ 

The  general  doctrine  in  admiralty  is  that  the  court  has  juris- 
diction in  cases  of  actions  for  supplies  or  material  furnished,  only 
where  they  are  furnished  to  a  foreign  vessel.^  But  supplies  or 
materials  furnished  in  one  state  to  a  vessel  belonging  to  another 
state  are  considered  as  furnished  to  a  foreign  vessel  lying  in  a  for- 
eign jurisdiction,  the  different  states  being  for  this  purpose  held  as 
foreign  to  each  other.'' 

§  45,  Suits  on  bottomry  bonds. — Suits  on  bottomry-bonds 
property,  so  called,  must  be  in  rem  only,  against  the  property  hy- 
pothecated, or  the  proceeds  of  such  property  in  whosesoever  hands 
they  may  be  found,  unless  the  bond  w^as  given  without  authority 
by  the  master,  or  by  his  fraud  or  misconduct  he  has  avoided  the 
same  or  has  subtracted  the  property,  or  unless  the  owner  has  by 
his  own  misconduct  or  wrong  lost  or  subtracted  the  property,  in 
which  latter  cases  the  suits  may  be  in  personam  against  the  wrong- 
doer.^ And  an  assignee  of  the  bond  may  either  sue  in  his  own  name 
on  the  bond  or  he  may  sue  in  the  name  of  the  assignor;^  and  the 
court  will  entertain  jurisdiction  of  a  suit  on  such  a  bond  executed 
in  a  foreign  country,  and  between  subjects  of  a  foreign  country, 
where  the  ship  is  within  the  territory  of  the  United  States/ 

§  46.  Suits  for  salvage. — In  suits  for  salvage  the  proceedings 
may  be  in  retn  against  the  property  saved  or  the  proceeds  thereof, 
or  in  personam  against  the  party  at  whose  request  and.  for  whose 
benefit  the  salvage  service  was  performed.^     The  libel  may  be  filed 

1  The  Grapeshot,  9  Wall.  129  :  The  *  The  Chusan,  2  Story  455  ;  Whit- 

Lulee,  10  Wall.  192;  The  Patapsco,  lock  v.  The  Thales,  20  How.  Pr.  447; 

13    Wall.    329;    The    Neversink,    5  The  Charles  Hears,  Newb.  197 :   The 

Blatch.  539 ;  The  John  and  Alice,  1  Nestor,  1  Sum.  73. 

Wash.  293;  The  Aurora.  1  Wh.  96;  ^  Adm.  Rule  18. 

The  Fortitude,  3  Sum.  234 ;  The  Vir-  «  Burk  v.  The  M.  P.  Pvich,  1    Cliff. 

!iin,  8  Pet.  554.  308. 

^  2  Crawford  v.  The  William  Penn,  3  ^  The  Jerusalem,  2  Gall.  190 ;  The 

Wash.  484.  Packet,  3  Mas.  255. 

•The    Jerusalem,  2    Gallis.    349;  8  ^dm.  Rule  19  ;  McGinnis  f.  Pon- 

Burk  V.  The  Brig  M.  P.  Rich,  1  Cliff,  tiac,  5  McLean  359 ;  The  Centurion, 

308  ;  The  Nestor,  1    Sum.    73 ;    The  Ware  447. 
Sandwich,  1  Pet.  Ad.  233. 


DISTRICT    COURTS.  63 

in  the  name  of  the  master  and  owners  of  the  salving  vessel,  al- 
though the  master  may  make  no  claim  on  his  own  behalf.'  It  mat- 
ters not  what  are  the  methods  or  means  pursued  to  save  a  vessel  or 
cargo  from  destruction  or  loss,  the  salvors  may  claim  a  lien  there- 
for on  the  property  saved  or  its  proceeds.  Thus,  where  a  vessel 
took  fire  in  a  harbor,  and  a  tug  towed  fire  engines,  commonly  used 
on  land,  and  lay  alongside  the  burning  vessel  while  the  engines 
threw  water  upon-  her  and  extinguished  the  fire,  the  owners  of  the 
tug  were  held  to  be  entitled  to  salvage,  although  the  representa- 
tives of  the  fire  department  directed  the  towing  to  be  done,  and 
made  no  claim  for  salvage.^  A  corporation  may  be  entitled  to  sal- 
vage as  well  as  a  natural  person  ;^  and  the  property  of  the  United 
States  may  be  subject  to  a  lien  for  salvage.*  The  lien  exists  upon 
the  property  saved,  and  it  requires  the  most  unequivocal  acts  on  the 
part  of  the  salvors  to  indicate  an  abandonment  of  the  lien,  so  as  to 
defeat  the  enforcement  of  the  same,  and  compel  them  to  resort  to  a 
suit  in  jyersonain  against  the  owners  for  payment ;  ^  but  salvors  cannot 
in  the  same  libel  proceed  in  rem  against  the  vessel  and  in  per- 
sonam against  the  consignees  of  the  cargo. ^ 

§  47.  Petitory  and  possessory  suits. — It  is  provided  by  rule  that 
"  in  all  petitory  and  possessory  suits  between  part  owners  or 
adverse  proprietors  ;  or  by  the  owners  of  a  ship,  or  the  majority 
thereof,  against  the  master  of  a  ship  for  the  ascertainment  of  the 
title  and  delivery  of  the  possession,  or  for  the  possession  only ;  or 
by  one  or  more  part  owners  against  the  others  to  obtain  security 
for  the  return  of  the  ship  from  any  voyage  undertaken  without 
their  consent ;  or  by  one  or  more  part  owners  against  the  others  to 
obtain  possession  of  the  ship  for  any  voyage,  upon  giving  security 
for  the  safe  return  thereof,  the  process  shall  be  by  an  arrest  of  the 
ship,  and  by  a  monition  to  the  adverse  party  or  parties  to  appear 
and  make  answer  to  the  suit."'^ 

Where  two  persons  were  equal  joint  owners  of  a  vessel,  but  one 
of  them  was  in  possession  as  ship's  husband,  who  left  her  in  an 
unsafe  condition  with  no  person  on  board,  and  the  other  half-owner 
took  possession  of  her,  on  an  application  by  the  former  for  her  pos- 


'  The  Blackwall,  10  Wall.  1.  =  Eads  v.  The  H.  D.  Bacon,  1  Newb. 

•■^  The  Blackwall,  10  Wall.  1.  Ad.  274. 

=*  The  Camanche,  8  Wall.  448.  «  The  Sabine,  101  U.  S.  384. 

*  The  Davis,  10  Wall.  15.  '  Adin.  Rule  20. 


64  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

session,  the  court  refused  to  interfere.^  Under  the  provisions  of 
the  rule  last  cited,  where  the  owner  of  a  one-fourth  part  of  a  whale- 
ship  gave  notice  to  the  owners  of  other  parts  of  her  that  he  would 
not  pay  anything  for  the  outfits  of  a  whaling  voyage  contemplated 
by  the  latter,  but  did  not  in  distinct  terms  dissent  from  the  voyage 
or  apply  for  security  for  a  return  of  his  share  in  said  ship  until 
she  was  nearly  ready  to  sail,  on  a  libel  filed  by  him  it  was  held 
that  he  was  entitled  to  security  by  stipulation  for  the  return  there- 
of, and  that  the  return  should  be  to  the  port  of  New  Bedford,  to 
which  she  belonged,  as  it  did  not  appear  that  the  other  owners  had 
been  misled  or  subjected  to  any  loss  by  the  delay  in  making  appli- 
cation for  security.^ 

The  question  of  title  and  ownership,  as  well  as  the  right  of  pos- 
session of  vessels,  may  be  determined  by  a  petitory  action  ;'^  but  a 
mere  equitable  title  is  not  sufiicient  to  justify  an  interference  of  a 
court  of  admiralty  to  give  possession  of  a  vessel  against  the  legal 
title,  as  possession  must  follow  the  legal  title."* 

For  form  of  process  for  the  arrest  of  a  vessel  in  such  cases,  see 
iwsty  Form  No.  112. 

§  48.  Suits  for  mariners'  wages. — A  contract  for  mariners'  services 
is  a  maritime  contract,  and  in  suits  thereon  in  admiralty  the  libel- 
lant  may  proceed  against  the  ship,  freight  and  master,  or  against 
the  ship  and  freight;  or  against  the  owner  alone,  or  the  master 
alone,  in  personam.'' 

Where  a  ship  is  engaged  in  an  unlawful  trade,  or  sails  on  an 
illegal  voyage,  and  she  is  seized  and  a  forfeiture  claimed  therefor 
by  the  government,  if  the  seamen  or  material-men  are  innocent  of 
all  knowledge  thereof  or  of  participation  therein,  their  claims  for 
wages  or  material  will  be  preferred  to  the  claims  of  forfeiture  by 
the  government;^  but  a  master  has  no  lien  on  the  ship  for  his 
wages  by  the  general  maritime  law,  although  he  may  maintain  a  suit 

^  The   Ocean,    1    Sprague   535.     A  ■*  The  Amelia,  6  Ben.  475  ;  Kynoch 

stipulation  tiled  to  secure  the  release  v.  Ives,  Newb.  205  ;  The  William  D. 

of  a   vessel    is  not  a  waiver   of  the  Rice,  3  Ware  134;  The  Perseverance, 

rights  of  the  principal  to  question  the  1  Bl.  &  H.  385. 

original  liability  of  the  vessel  :    The  ^  Adm.  Rule  13. 

Fidelity,  16  Blatch.  569.  e  The  St.  Jago  De  Cuba,  9  Wh.  409 ; 

^  The  Marengo,  1  Sprague  506.  The   United    States   v.   Robertson,    5 

^  Ward  V.  Peck,  18  How.  267  ;    The  Pet.    675  ;    The   Langdon    Cheves,  2 

Tilton,  5   Mas.    465;    Gregg    v.  The  Mas.  58. 

Clarissa    Ann,    2   Hughes   89 ;     The 

Friendship,  2  Curt.  426. 


DISTRICT   COURTS.  65 

in  admiralty,  in  personam,  for  wages,  or  for  compensation  in  the 
nature  of  wages.^ 

The  lien  for  seamen's  wages  attaches  not  only  to  the  ship,  but  to 
the  freight,  and  they  have  a  priority  of  all  other  claims  ;  and  in  case 
of  loss  the-ship  owners  are  liable  therefor.^  The  lien  of  seamen 
for  wages  takes  precedence  even  over  bottomry  bonds  and  all  other 
claims  or  liens,  whether  the  entirety  of  the  fund  out  of  which  they 
should  be  paid  remains  or  a  part  of  it  is  lost ;  and  this  right  ex- 
tends to  the  last  fragment  of  the  freight,  and  is  "nailed  to  the  last 
plank  of  the  ship  ;"  and  it  cannot  be  aifected  by  any  private  con- 
tract between  the  owner  of  the  ship  and  the  shippers.^ 

If  a  portion  of  a  wrecked  vessel  is  saved  by  the  exertions  of  the 
seamen  and  brought  into  port  and  sold,  they  have  a  lien  on  the  pro- 
ceeds for  their  wages.*  They,  like  material-men,  have  a  triple 
security  for  their  wages,  namely,  the  vessel,  the  owner  and  the 
master.  The  owner  is  liable,  although  his  name  does  not  appear  in 
the  shipping  articles;  and  if  a  sale  of  the  vessel  is  made  subsequent 
to  the  making  of  the  shipping  articles,  this  will  not  discharge  the 
liability  of  the  owner,  even  though  the  voyage  was  not  terminated, 
and  even  though  the  ship  be  lost;  in  which  latter  case  they  are 
entitled  to  wages  until  discharged.^  If,  however,  in  case  of  a  wreck 
they  abandon  the  ship,  they  lose  their  lien  upon  it,  and  are  not 
restored  by  the  jus  postliminii  on  the  salvage  of  the  property  of 
other  persons.®  But  they  would  not  lose  their  claim  for  a  lien  by 
taking  an  order  on  the  charterer  for  their  wages. ^  They  are  en- 
titled to  the  lien  from  the  time  the  contract  is  entered  into,  and 
while  the  ship  is  getting  ready  to  sail,  though  she  may  never  leave 
the  port.^ 

§  49.  Suits  for  pilot's  wages. — The  right  of  a  pilot  is  more  limited 
than  that  of  a  seaman,  by  a  rule  of  admiralty,  if  not  by  the  general 

^  The  Steamboat  Orleans,   11    Pet.  in  New  York,  the  voyage  not  beine; 

175  ;  Ilainmond  v.  The  Essex  Fire  In-  completed,  but  they  being  discharged, 

surance  Co.,  4  Mas.  196 ;  Willard  v.  two  months  extra  pay. 

Dorr,  3  Mas.  91.  '  Lewis  v.  The  Elizabeth  and  Jane, 

^  Brown  et  al.  v.  Lull,  2  Sum.  443.  1  Ware  41.    A  person  hired  by  a  cap- 

^  Pitman  v.  Hooper,  3  Sum.  50.  tain  of  a  vessel  to  act  as  nominal  cap- 

*  Brackett  et  al.  v.  The  Hercules,  tain  is  entitled  to  the  wages  agreed 

Gilp.  184.  upon,  and  the  vessel  and  owner  are 

^  Bronde  f.  Haven,  Gilpin  592.    See  liable  therefor:   L'Arina  r.  Brig  Ex- 

also   The   Brig   Blohm,    1    Ben.  228,  change,    Bee's    Adm.    198;    Same   v. 

where  under  a  contract  made  in  Ham-  Manwaring,  Id.  199. 

burg   seamen    were    allowed,    out  of  ''  The  Eastern  Star,  1  Ware  185. 

a  fund  produced  by  a  sale  of  the  ship  *  The  Island  City,  Low.  Dec.  375. 
5 


66  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

principles  of  admiralty  practice.  In  the  case  of  a  seaman,  he  may 
enforce  his  lien  for  wages  even  against  the  freight ;  but  in  suits 
for  pilotage,  the  libellant  can  only  proceed  against  the  ship  and 
master,  or  against  the  ship  or  against  the  owner  alone,  or  the  master 
alone  in  personam} 

§  50.  Jurisdiction  in  case  of  torts. — In  respect  to  jurisdiction  in 
admiralty  depending  upon  locality  in  case  of  tort,  by  the  general 
principles  of  the  admiralty  law  the  tort  must  have  been  committed 
upon  the  high  seas,  or  at  least  within  the  ebb  and  flow  of  the  tides.' 
But  Congress,  by  the  judiciary  act  of  1789,  gave  the  district  courts 
jurisdiction  in  admiralty,  in  certain  cases,  over  fresh  waters  naviga- 
ble from  the  sea  with  vessels  of  ten  tons  burden  and  upwards  ;^  and 
an  act  of  February  20,  1845,  gave  them  "the  same  jurisdiction  in 
matters  of  contract  and  tort  arising  in,  upon  or  concerning 
steamboats  and  other  vessels  of  twenty  tons  burden  and  upwards, 
enrolled  and  licensed  for  the  coasting  trade,  and  employed  in  com- 
merce and  navigation  upon  the  lakes  and  navigable  waters  connect- 
ing them,  as  is  possessed  by  those  courts  in  cases  of  the  like  ves- 
sels employed  upon  the  high  seas  or  tide  waters,  within  admiralty 
or  maritime  jurisdiction."  ^ 

The  provisions  of  these  acts  do  not  appear  to  be  incorporated 
into  the  Revised  Statutes,  by  any  positive  declaration  of  jurisdic- 
tion of  the  district  courts  in  such  cases;  but  such  jurisdiction  may 
well  be  inferred  from  a  provision  of  section  566  of  said  statutes, 
which  is  as  follows:  "In  causes  of  admiralty  and  maritime  juris- 
diction relating  to  any  matter  of  contract  or  tort  arising  upon  or 
concerning  any  vessel  of  twenty  tons  burden  or  upward,  enrolled 
and  licensed  for  the  coasting  trade,  and  at  the  time  employed  in 
the  business  of  commerce  and  navigation  between  places  in  different 
states  and  territories,  upon  the  lakes  and  navigable  waters  connect- 
ing the  lakes,  the  trial  of  issues  of  fact  shall  be  by  jury  when  either 
party  requires  it." 

In  the  absence  of  any  positive  statutory  provision  conferring 
jurisdiction  on  these  courts,  or  extending  their  jurisdiction  in 
admiralty  over  Avaters  not  within  admiralty  jurisdiction  as  limited 

'  Adm.  Rule  14 ;  The  Anne,  1  Mas.  chants'  Bank,  6  How.  344  ;    The  Al- 

507;    The   Wave,    7    Leg.    Obs.    97;  nieida,  lU  Wh.  473;    The  Belfast,  7 

Logan  V.  The  Eolian,  1  Bond  267.  Wall.  624  ;  Peyron  v.  Howard,  7  Pet. 

^Waring   v.   Clark,    5    How.   441  ;  324. 

The  Genesee  Chief,  12  How.  443.  '  Stat,  at  Large,  C.  20,  V.  5,  p.  726. 

'  New  Jersey  Steam  Nav.  Co.  v.  Mer- 


DTSTKICT   COURTS.  67 

by  the  English  law,  it  has  been  maintained  by  very  cogent  argu- 
ments that  they  may  exercise  admiralty  jurisdiction  over  the  lakes 
and  rivers  of  the  country  navigable  for  the  purposes  of  trade  and  com- 
merce between  states,  or  between  one  of  the  states  and  a  foreign  state. 
The  admiralty  jurisdiction  of  the  English  courts  is  limited  locally 
to  the  sea  or  to  waters  therewith  connected  where  the  tides  ebb  and 
flow.  The  ebb  and  flow  of  the  tides  there  is  the  test  of  navigability 
for  the  purposes  of  carrying  on  trade  and  commerce  with  foreign 
states.  But  it  is  different  in  this  country.  The  ebb  and  flow  of 
the  tides  here  is  not  the  test  of  navigability  of  our  lakes  and  rivers 
to  aid  commerce  between  states  or  with  foreign  states.  Hence  it  has 
been  held  that  this  limitation  and  doctrine  in  the  English  admiralty 
law  has  no  proper  application  in  this  country,  and  that  the  admi- 
ralty jurisdiction  of  the  district  courts  properly  extends  "  wher- 
ever vessels  float  and  navigation  successfully  aids  commerce, 
whether  internal  or  external."^  In  view  of  these  broad  and 
enlightened  views  of  the  highest  federal  tribunal,  and  taking  into 
consideration  the  provision  of  the  Revised  Statutes  above  referred 
to,  giving  a  right  of  trial  by  jury  in  such  cases,  it  may  well  be 
inferred  that  Congress  assumed  that  these  courts  possessed  ade- 
quate powers  in  such  cases,  without  a  direct  legislative  declaration 
to  that  effect.  The  question  in  such  a  case  as  to  the  navigability 
of  rivers  and  lakes  for  the  purposes  aforesaid  would  be  one 
of  fact,  and  the  jurisdiction  would  be  limited  to  vessels  engaged 
in  foreign  commerce,  or  commerce  between  states,  and  would  not 
ordinarily  extend  to  the  internal  commerce  of  a  state,  or  to  the 
enforcement  of  state  laws  relating  to  internal  commerce.^ 

§  51.  Suits  for  collisions. — By  a  rule  of  court,  in  a  suit  for  dam- 
age caused  by  a  collision,  the  libellant  may  proceed  against  the 
ship  and  master,  or  against  the  ship  alone,  or  against  the  master 
or  owner  in  personam.^ 

If  a  libel  is  filed  for  damage  caused  by  a  collision  in  a  foreign 
port,  the  rights  of  the  parties  would  be  governed  by  the  law  of  the 
country  where  the  collision  occurred ;  and  if  doubts  exist  as  to  the 

^  The  Hine,  4  "Wall.  555 ;  The  Gen-  248.     An  exception  to   this   doctrine 

esee  Chief,  12  How.  443  ;    The  Moses  may  however  arise  in  cases  of  claims 

Taylor,  4  Wall.  411;    The  Eagle,  8  for  salvage:   Allen  v.   Newberry,  21 

Wall.   15;     The   Steamboat    Co.,    16  How.  244. 

Wall.  522.  ■'  Adm.  Rule  15. 

*  Maguire     v.     Card,  .21       How. 


68  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

true  construction  of  the  law,  resort  may  be  bad  to  tbe  construction 
made  by  the  courts  in  tbe  foreign  country.  This  doctrine  is  conso- 
nant with  tbe  general  principles  of  tbe  law,  and  was  followed  in 
this  country  in  a  case  of  libel  for  damages  occurring  in  an  English 
port.^ 

§  52.  Libel  against  the  vessel  and  master. — By  tbe  provisions  of 
the  rule  last  cited,  the  proceeding  in  admiralty  for  a  collision  may 
be  in  rem  against  the  vessel,  and  in  j^ersonam  against  tbe  master, 
and  these  remedies  may  be  joined  in  one  proceeding;^  or  it  may  be 
against  the  ship  alone;  or  it  may  be  against  the  master  or  owner 
alone  in  personam.  But  the  rule  does  not  authorize  a  proceeding 
against  the  ship  in  rem  and  personally  against  the  owner  at  the 
same  time.' 

Where  tbe  loss  from  collision  arises  from  the  negligence  of  the 
master  and  crew,  the  master  is  liable  as  well  as  the  ship.*  Under 
tbe  present  rule  the  remedy  might  be  against  both  jointly,  and  they 
would  not  be  exempted  from  liability  if,  even  after  a  wreck  caused 
by  a  collision,  a  portion  of  the  cargo  is  irgured  or  lost  through 
efforts  of  another  vessel  to  save  it.^ 

§  53.  Assault  and  battery. — In  suits  for  assault  and  battery  com- 
mitted upon  tbe  high  seas,  or  elsewhere  within  tbe  admiralty  and 
maritime  jurisdiction  of  tbe  district  courts,  the  proceeding  can  be 
only  in  personam.^  There  is  a  different  rule,  usually  applicable  to 
the  deportment  of  persons  to  each  other  on  land,  from  that  which 
obtains  on  board  a  ship.  The  authority  of  officers  must  be  respected 
on  tbe  latter,  and  they  are  authorized  to  punish  for  disobedience. 
But  a  seaman  may  recover  damages  for  an  assault  and  battery  in- 
flicted wantonly  and  without  cause  by  an  officer;  or  where,  although 
a  punishment  is  inflicted  for  a  provocation  and  just  cause,  it  is 
done  in  a  cruel  or  excessive  manner,  or  where  it  is  -inflicted  with  a 
dangerous  or  deadly  weapon.^ 

So  the  master  is  liable  for  an  unjustifiable  assault  and  battery  by 
'one  of  his  officers  upon  one  of  the  crew,  where  it  is  done  by  his 
direction  or  command,  connivance  or  consent;  and  these  will  be 

1  Smith  V.  Condry,  1  How.  28.  ^  The  Narragansett,  01c.  246. 

^Newell    V.    Norton   and    Ship,    3  *Adm.  Rulel6;  Thomas  v.  Lane, 

Wall.  257.  2    Sum.  1.     The  jurisdiction   of  the 

^  The  Atlantic  and  Ogden.shurg,  1  court  depending  upon  locality  should 

Newb.  Adm.  139;  Ward  v.  The  Og-  appear  from  the  libel :  Id. 

densburg,  5  McLean  622.  ">  Forbes  v.  Parsons,  Crabbe  288. 

*  Hale  w.Wash.  Ins.  Co.,  2  Story  176. 


DISTRICT    COURTS.  69 

presumed  where  he  had  knowledge  of  it  and  did  not  interfere  to 
prevent  it.^ 

The  authority  of  the  master  or  captain  of  a  vessel  to  punish  sea- 
men for  disobedience  ends,  it  seems,  with  the  voyage ;  and  if  an 
offending  seaman  is  afterwards  taken  again  on  board,  the  officer 
cannot  thereafter  punish  or  assault  and  beat  him  for  an  offence 
committed  before  he  discharged  him.^ 

§  54.  Injury  to  passengers. — The  admiralty  jurisdiction  of  the 
district  courts  extends  to  assault  and  battery  of  passengers  as  well 
as  to  seamen,  and  they  may  recover  damages  for  willful  and  wanton 
injuries,  whether  they  are  the  result  of  direct  force  or  merely 
consequential  and  indirect,  as  where  a  passenger  has  been  subjected 
to  gross  ignominy  and  mental  suffering  by  the  brutal  maltreatment 
and  insults  of  the  master  of  the  vessel.  It  extends  to  every  species 
of  torts  and  wrongs  suffered  in  consequence  of  the  negligence  or 
malfeasance  of  others,  where  the  remedy  at  common  law  would  be 
an  action  on  the  case.^ 

1  Hanson  v.  Fowle,  1  Saw.  (C.  C.)  242;  Phila.,  W.  &  B.  R.  Co.  v.  Tow- 

539.  boat  Co.,  23  How.  209  ;  The  Plymouth, 

^  Roberts  v.  Dallas,  Bee's  Adm.  239.  3  Wall.  20  ;  The  New  World  v.  King, 

^  Chamberlain  v.  Chandler,  3  Mas.  16  How.  469 ;  The  Eagle,  8  Wall.  15. 


CHAPTER  VI. 

PLEADING    AND    PRACTICE    IN    ADMIRALTY. 

§  55.  General  principles.— The  general  rules,  principles  and 
modes  of  procedure  which  obtained  in  the  English  courts  of  ad- 
miralty and  maritime  jurisdiction  at  the  inception  of  our  govern- 
ment are  substantially  applicable  to  our  federal  courts  of  admi- 
ralty and  maritime  jurisdiction.  These  have  in  some  cases  been 
changed  or  modified  by  acts  of  Congress,  and  regulated  by  rules 
prescribed  by  the  Supreme  Court,  and  by  local  rules  of  the  courts 
in  the  various  districts.^  But  the  exercise  of  powers  and  usages 
by  the  district  courts,  generally  recognized  as  belonging  to  courts  of 
admiralty  and  maritime  jurisdiction,  cannot  be  restrained  by  mere 
rules  of  court. ^ 

§  56.  The  libel. — The  first  pleading  on  the  part  of  the  libellant 
or  party  instituting  proceedings  on  the  admiralty  side  of  the  court 
is  the  libel,  which  should  contain  a  clear  statement  of  the  ma- 
terial facts  of  the  case  in  distinct  articles  or  paragraphs,  con- 
secutively numbered — of  the  wrongs  done  for  which  he  claims  dam- 
ages, and  the  grounds  on  which  he  bases  his  claims  to  property,  with 
such  sufficient  fullness  and  precision  as  to  enable  the  defendant  to 
answer  distinctly  each  material  averment;  and  it  should  especially 
contain  averments  which  bring  the  case  within  the  admiralty  juris- 
diction of  the  court. ^  The  pleadings  in  admiralty  are  simple  and 
untechnical,  and  in  this  respect  they  correspond  more  closely  with 
pleadings  in  equity  than  those  of  the  common  law. 

§  57.  Process  cannot  issue  until  the  libel  is  filed. — No  mesne  pro- 
cess can  issue  in  any  civil  cause  of  admiralty  or  maritime  jurisdic- 
tion until  the  libel  or  libel  of  information  is  filed  in  the  office  of  the 
clerk  of  the  court  from  which  relief  is  sought.  And  all  process 
must  be  served  by  the  marshal  or  his  deputy,  or,  where  they  are 

1  Manro  v.  Almeida,  10  Wh.  473  :  '  The  Boston,  1    Sum.  328  ;  Talbot 

United  States  v.  The   Little  Charles,  v.  AYakeman,  19  How.   Pr.   36;  Du- 

1  Brock.  380 ;  .Jennings  v.  Carson,  4  pont  v.    Vance,   19    How.   162;    The 

Cr.    2  ;    Adm.    Rule    46 ;    Beers    v.  Adaline,  9  Cr.  244 ;  Thomas  v.  Lane, 

llaughton,  9  Pet.  329.  2  Sum.  1  ;  Orne  v.  Townsend,  4  Ma.s. 

^  Gates  V.  Johnson,  11  L.  Rep.  N.  S.  541;    Treadwell   v.  -Joseph,    1    Sum. 

279.  390  ;  The  Washington,  4  Blatch.  101. 


PLEADING    AND    PRACTICE    IN    ADMIRALTY.  71 

interested,  by  some  discreet  and  disinterested  person  appointed  by 
the  court. ^  The  process  must  be  directed  to  the  marshal  or  his 
deputy,  or,  where  he  or  they  are  interested,  to  some  discreet  and 
disinterested  person  appointed  by  the  court ;  and  it  cannot  be  served 
by  a  private  person,  although  by  the  laws  of  the  state  orii^inal  pro- 
cess may  be  so  served.^  For  form  of  citation  in  such  case,  see  post, 
No.  124. 

§  58.  The  mesne  process. — In  suits  in  personain,  the  mesne  pro- 
cess may  be  by  a  simple  warrant  of  arrest  of  the  person  of  the 
defendant  in  the  nature  of  a  capias,  or  warrant  of  arrest  of  the 
person  of  the  defendant,  with  a  clause  therein  that,  if  he  cannot  be 
found,  his  goods  and  chattels  be  attached  to  the  amount  sued  for;  and 
if  such  property  cannot,  be  found,  his  credits  and  effects  be  attached 
to  the  amount  sued  for  in  the  hands  of  garnishees  named  therein, 
or  by  a  simple  monition  in  the  nature  of  a  summons  to  appear  and 
answer  to  the  suit,  as  the  libellant  shall  in  his  libel  or  information 
pray  for  or  elect.^ 

For  appropriate  forms  in  such  cases,  see  post,  Nos.  123,  137. 

§  59.  Several  claims  for  damages. — If  several  claims  for  damages 
are  united  in  one  libel,  it  would  seem  advisable  to  state  the  facts  of 
each  separately  in  a  distinct  article  or  paragraph,  as  otherwise  the 
defendant  might  not  be  able  to  make  a  proper  answer  and  it  would 
be  subject  to  exception.*  If  the  libel  is  for  damages  for  an  assault 
and  battery,  it  is  sufficient  to  set  forth  the  facts  constituting  the 
offence;  but  if  it  is  designed  to  recover  for  several  distinct  and 
separate  torts  of  this  kind,  it  is  desirable,  if  not  necessary,  to  set 
them  out  distinctly  in  separate  and  distinct  articles,  in  order  that 
proper  evidence  may  be  offered  in  support  of  them,  as  it  is  a  gen- 
eral rule  in  admiralty  as  well  as  at  law  and  in  equity,  that  the  proofs 
must  be  confined  to  and  follow  the  allegations  of  the  pleadings.'^ 
Under  a  rule,  however,  prescribed  by  the  Supreme  Court,  amend- 
ments in  pleadings  in  admiralty  may  be  made  in  matters  of  form, 
on  a  mere  motion  to  the  court,  as  of  course,  in  matters  in  substance, 
upon  motion  at  any  time  before  a  decree,  upon  such  terms  as  the 
court  shall  impose.     But  evidence  variant  from  the  pleadings  will 

1  Adm.  Rule  1.  *  Treadwell  v.  Joseph,  1  Sura.  390. 

^  Schwabackerr.  Reilly,  2Dill.  127;  *  McKinlay  v.  Morrish,  21  How. 
The  United  States  v.  The  Little  343  ;  Kramme  v.  The  New  England, 
Charles,  1  Brock.  380.  •  Newb.  481  ;  Campbell  v.  The   Uncle 

3  Adm.  Rule  2.  ^  Sam,  1  McAll.  77. 


i2  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

not  furnish  grounds  for  excluding  it,  unless  it  is  calculated  to 
mislead.^ 

For  various  forms  of  libel,  see  post,  Nos.  110-121. 

§  60.  Suits  against  the  ship's  tackle,  etc. — In  case  of  proceedings 
against  a  ship,  her  tackle,  sails,  apparel,  furniture,  boats  or  other 
appurtenances,  if  such  tackle,  sails,  apparel,  furniture,  boats  or  other 
appurtenances  are  in  the  possession  of  any  third  person,  the  court 
may,  after  the  filing  of  the  libel,  issue  a  monition  to  such  person  to 
show  cause,  if  any,  why  the  same  should  not  be  delivered  to  the 
marshal,  and  the  court  may  upon  the  hearing,  if  any,  award  and 
decree  that  the  same  be  delivered  into  the  custody  of  the  marshal  if 
it  appears  to  be  required  by  law  and  justice.^ 

For  forms  of  bond  or  stipulations  for  costs,  order  for  process, 
and  forms  of  process  of  various  kinds,  see  post,  Nos.  127,  128,  129, 
130,  and  136-188. 

§  61.  Order  for  process  to  issue  ;  stipulation  for  costs. — There 
does  not  appear  to  be  any  positive  statutory  provision  or  rule  pre- 
scribed by  the  Supreme  Court  requiring  the  libellant  to  give 
security  for  costs  ;  but  this  is  perhaps  generally  required  by  rules 
adopted  by  the  various  district  couros.  Nor  is  there  any  statute  or 
rule  requiring  the  issuance  of  process,  but  the  practice  is  to  obtain 
an  order  of  the  judge  for  the  proper  process  to  issue;  and  this  is 
especially  required  where  the  suit  is  in  personam,  and  a  warrant  of 
arrest  either  of  the  person  or  property  is  asked,  for  a  sum  exceed- 
ing five  hundred  dollars.^  For  a  form  of  order  in  such  a  case,  see 
post,  No.  136. 

It  is  further  provided  by  rule  that  bonds  and  stipulations  in  ad- 
miralty suits  may  be  given  and  taken  in  open  court  or  at  chambers, 
or  before  any  commissioner  of  the  court  who  is  authorized  by  the 
court  to  take  affidavits  of  bail  or  depositions  in  cases  pending 
before  the  court  or  any  commissioner  of  the  United  States  author- 
ized to  take  bail  and  affidavits  in  civil  cases.* 

The  stipulation  should  be  signed  by  the  libellant  and  the  sure- 
ties, and  be  acknowledged  before  the  proper  officer,  who  should 
require  a  justification  by  affidavit  on  the  part  of  the  surety.  If, 
however,  there  is  a  defective  stipulation   filed  with  the  clerk,  the 

^  Adm.  Rule  24;   Crawford   v.  The     Certain  Logs  of  Mahogany,  2    Sum. 
William    Penn,   3    Wash.  4S4 ;    The     589. 
Clement,  2  Curt.  363.  '      ^  j^^j^   Ryig  y^ 

"  Adiu.  Rule  8.      See  also,  as  to  at-        *  Adm.  Rule  5. 
t;ich!iie)its  or   replevin    of    property, 


PLEADING    AND    PRACTICE    IN    ADMIRALTY.  73 

defect  will  be  deemed  waived  unless  excepted  to  by  the  party  in- 
terested therein  before  the  close  of  the  term  of  court  next  subse- 
quent to  its  becoming  known  to  him.^ 

§  62.  New  sureties,  when  required  ;  bail  reduced. — It  is  further 
provided  by  rule  that  in  all  suits  in  personam,  where  bail  is  taken, 
the  court  may  on  motion  therefor  reduce  the  amount  of  the  bail ; 
and  in  all  cases  where  a  bond  or  stipulation  is  taken  as  bail,  or 
upon  dissolving  an  attachment  of  property  as  provided  by  the 
rules,  if  either  of  the  sureties  shall  become  insolvent  pending  the 
■suit,  new  sureties  may  be  required  by  the  order  of  the  court,  to  be 
given  upon  due  proof  thereof.^ 

§  63.  In  case  of  contracts  or  torts,  may  attach. — The  district 
courts  have,  as  we  have  observed,  jurisdiction  of  maritime  contracts 
and  torts,  and  of  suits  in  personam  as  well  as  in  rem.  If  the  suit 
is  in  personam,  the  court  may  issue  a  process  of  arrest  which  may 
contain  an  attachment  clause,  and  if  the  defendant  has  absconded 
or  cannot  be  found  within  the  jurisdiction  of  the  court,  the  property 
of  the  defendant  may  be  attached  ;  and  in  case  of  default,  the  at- 
tached property  may  be  condemned  to  answer  the  claim  of  the 
libellant.  If  property  of  the  defendant  cannot  be  found,  the 
credits  and  effects  of  the  defendant  in  the  hands  of  the  third  parties 
may  be  garnisheed.^  The  primary  object  in  all  such  cases  is  to 
secure  the  appearance  of  the  defendant  in  the  suit,  and  not  the 
arrest  of  the  property. 

§  64.  When  attachments  may  be  dissolved. — When  property  is  at- 
tached in  a  suit  in  personam,  under  a  warrent  authorizing  the  same, 
the  attachment  maybe  dissolved  by  order  of  the  court  to  which  the 
warrant  is  returnable,  by  the  giving  of  a  bond  or  stipulation  by  the 
defendant,  with  sufficient  sureties,  to  abide  by  all  orders  of  the  court, 
interlocutory  or  final,  and  to  pay  the  amount  awarded  by  the  final 
decree  rendered  by  said  court  or  any  appellate  court;  and  execu- 
tion may  issue  against  said  principal  and  sureties  from  either  of  said 
courts,  to  enforce  a  final  decree  rendered  therein.^  The  bond  in 
such  a  case  becomes  a  substitute  for  the  property  seized,  and  the 
question  as  to  the  right  to  subject  the  property  to  the  claim  of  the 

^  Abb.  Adm.  327;  Sawyer  v.  Oak-  Candalero,  Bee's  Adm.  64;  Bouyson 

ham,  11  Blatch.  C.  C.  65.  o.  Miller,  Id.  186  ;  Keed  v.  Hussey,  1 

2  Adm.  Rule  6.  Blatch.  &  H.  525 ;  Mankin  v.   Chan- 

^  Adm.  Rule  2 ;  Manro  v.  The  Al-  dler,  2  Brock.  125. 

meida,  10  Wh.  473;  McGrath  v.  The  *  Adm.  Rule  4. 


74  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

libellant  must  be  determined  before  a  final  decree  can  be  rendered 
on  the  bond,  either  by  the  district  court  or  the  circuit  court  on  appeal, 
and  the  Supreme  Court  cannot  review  this  question.  And  if  suoh 
a  bond  or  stipulation  is  given  by  a  member  of  a  firm,  at  their  re- 
quest and  for  their  benefit,  this  bars  a  suit  against  the  other  part- 
ners.^ 

§  65.  "When  the  marshal  may  take  bail ;  summary  process. — It  is 
further  provided  by  rule,  that  "  In  all  suits  in  persona7n  where  a 
simple  warrant  of  arrest  issues  and  is  executed,  the  marshal  may 
take  bail  with  sufficient  sureties  from  the  parties  arrested,  by  bond 
or  stipulation,  upon  condition  that  he  will  appear  in  the  suit  and 
abide  by  all  orders  of  the  court,  interlocutory  or  final,  in  the  cause, 
and  pay  the  money  awarded  by  the  final  decree  rendered  therein 
in  the  court  to  which  the  process  is  returnable,  or  in  the  appellate 
court.  And  upon  such  bond  or  stipulation  summary  process  of 
execution  may  and  shall  be  issued  against  the  principal  and  sure- 
ties by  the  court  to  which  such  process  is  returnable  to  enforce  the 
final  decree  so  rendered,  or  upon  appeal  by  the  appellate  court."  ^ 

It  is  not  sufficient  under  this  rule,  in  order  to  release  the  party 
in  custody,  that  he  give  a  stipulation  for  costs  on  the  return  day 
of  the  process,  but  he  is  required  to  give  a  bond  or  stipulation  to 
satisfy  any  decree  which  may  be  rendered  against  him  in  the  suit, 
and  until  this  is  done  he  cannot  be  discharged  from  arrest.^  Where 
the  condition  of  the  bond  provided  that  the  parties  w^ould  perform 
the  decree  of  the  court,  etc.,  it  was  held  that  this  meant  the  court 
that  should  ultimately  decide  the  case.*  But  the  court  will  not 
suffer  a  party  to  be  held  to  bail  in  two  places  at  the  same  time,  for 
the  same  cause  of  action.^ 

"When  a  decree  is  rendered  against  the  principal  in  the  bond  or 
stipulation,  execution  may  properly  issue  again.st  the  stipulators, 
upon  the  decree  rendered,  as  well  as  against  the  principal." 

For  various  forms  of  bonds  or  stipulations  in  such  cases,  see 
2)ost,  Nos.  Ill,  114,  128,  129,  130. 

§  66.  When  a  warrant  of  arrest  cannot  issue. — It  has  already  been 
incidentally  observed  that  no  Avarraut  of  arrest,  either  of  the  person 

1  United  States  v.   Ames,  99  U.  S.  ■•  The    U.   S.    v.  Little    Charles,    1 

3.5.  Brock.  C.  C.  380. 

'^  Adm.  Rule  3.  *  Bingham  v.  Wilkins,  Crabbe  50. 

^Gardner  v.  Isaacson,  Abb.  Adm.  ®  Gaines   v.    Travers,    Abb.    Adm. 

141.  422. 


PLEADING   AND    PRACTICE    IN    ADMIRALTY.  75 

or  property  of  the  defendant,  in  suits  in  personam,  can  issue  for  a 
sum  exceeding  five  hundred  dollars,  unless  by  special  order  of  the 
court,  upon  affidavit  or  other  proper  proof,  showing  the  propriety 
thereof.^ 

§  67.  The  claim  ;  pleading  of  a  claimant  in  proceedings  in  rem. — 
A  person  who  claims  the  property  involved  in  a  proceeding  in  rem 
may,  by  a  sort  of  pleading  called  a  claim,  intervene  in  the  suit  and 
have  his  right  to  the  same  adjudicated  in  the  same  suit.  He  may 
obtain  the  property,  in  the  first  instance  by  depositing  in  court  so 
much  money  as  the  court  shall  order,  or  by  giving  a  stipulation 
Avith  sureties,  after  an  appraisement  of  the  property,  in  such  sum 
and  on  such  conditions  as  the  court  may  direct.  The  court  on  the 
hearing  may  adjudge  the  property  to  him,  or  that  he  receive  the 
balance  of  its  proceeds  after  satisfying  any  decree  in  favor  of 
the  libellant,  as  the  case  may  require.^  For  forms  of  claims  see 
post,  Nos.  113,  118. 

§  68.  Where  the  property  arrested  is  owned  by  several  or  jointly. 
— It  frequently  occurs  that  property  arrested  by  proceedings  in 
admiralty  is  owned  by  several  parties,  as,  for  instance,  a  vessel  or 
its  cargo,  in  which  latter  case  there  might,  and  usually 
"would,  be  several  owners  of  it.  In  such  a  case  it  seems 
to  be  the  practice  to  allow  one  of  them  to  make  a  claim 
on  behalf  of  himself  and  the  other  owner  or  owners ;  but,  where 
the  property  interests  are  distinct,  it  is  required  by  the  general 
principles  of  admiralty  practice  that  the  claims  be  set  up  by 
each  of  the  several  owners.  Between  such  parties  there  is  no  pri- 
ority of  interest,  and  their  interests  are,  therefore,  independent 
matters  of  adjudication.  Several  parties  owning  distinct  parts  of  a 
cargo,  separately  may  interpose  in  case  of  a  libel  for  salvage, 
although  the  libel  is  against  the  whole,  and  the  claims  of  the  several 
parties  would  be  adjusted  in  the  one  proceeding,  as  if  it  had  been 
a  distinct  proceeding  against  the  particular  property  of  each  owner. 
And  in  case  any  particular  part  of  the  property  arrested  is  not 
claimed,  it  is  the  practice  of  the  court  to  retain  possession  of  it  for 
at  least  a  year  and  a  day  from  the  time  the  proceedings  are  insti- 
tuted, unless  some  claimant  sooner  appears. 

^  Adm.  Rule  7  :    Marshal  v.  Bazin,  release  a  vessel  is  not  a  waiver  of  the 

7  N.  Y.  Leg.  Obs.  342.  question   of    orijiinal    liability ;    The 

^  Conk.  Adm.  203,  and  Dotes;  Adm.  Fidelity,  16  Blatch.  569. 
Rule  10,  11.    But  a  stipulation  filed  to 


76  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

As  a  general  rule  the  claimant  is  required  to  intervene  on  the 
return  day  of  the  process,  and  then  be  ready  to  file  his  elaim  in 
court;  and  in  case  of  failure  so  to  do,  or  of  the  defendant  to  appear 
and  answer  by  that  time,  the  libel  may  be  taken  joro  confesso;  but  it 
is  usual  to  allow  a  reasonable  time  thereafter  to  the  defendant  to 
prepare  an  answer,  where  he  applies  for  further  time.* 

Sometimes  the  claim  of  proprietory  right  is  joined  with  an  an- 
swer, and  called  a  claim  and  answer  ;  but  as  the  right  of  a  claimant 
in  court  rests  upon  his  right  of  property  or  that  of  his  principal, 
and  this  alone  gives  him  a  right  to  interpose  a  claim,  it  has  been 
considered  the  better  practice  to  put  in  the  claim  separately.^ 

§  69.  The  claim  must  be  verified  ;  stipulation  for  costs. — It  is 
required  by  a  rule  of  practice  in  admiralty  prescribed  by  the 
Supreme  Court  that,  "in  suits  in  rem,  the  party  claiming  the 
property  shall  verify  his  claim  on  oath  or  solemn  affirmation,  stat- 
ing that  the  claimant  by  whom  or  on  whose  behalf  the  claim  is 
made  is  the  true  tindihond  fide  owner,  and  that  no  other  person 
is  the  owner  thereof.  And  where  the  claim  is  made  by  an  agent 
or  consignee,  he  shall  also  make  oath  that  he  is  duly  authorized 
thereto  by  the  owner  ;  or  if  the  property  be,  at  the  time  of  the 
arrest,  in  the  possession  of  the  master  of  a  ship,  that  he  is  the  law- 
ful bailee  thereof  for  the  own6r."  The  claimant  in  such  a  case  is 
required  to  file  a  stipulation  with  sureties  in  such  sum  as  the  court 
may  direct,  for  the  payment  of  all  costs  and  expenses  which  shall 
be  awarded  against  him  by  the  final  decree  of  the  court,  or  upon  an 
appeal  by  the  appellate  court.^  For  forms  of  claims,  see  post,  Nos. 
113,  118,  122. 

§  70.  When  the  ship  will  be  delivered  to  a  claimant. — If  any 
ship  shall  be  arrested,  it  may,  upon  the  application  of  a  claimant, 
be  delivered  to  him  upon  an  appraisement  had  under  the  direc- 
tion of  the  court,  and  upon  his  depositing  in  the  court  so  much 
money  as  the  court  shall  order ;  or  upon  his  giving  a  stipulation, 
with  sureties  in  such  sum  as  the  court  shall  direct,  to  abide  by  and 
pay  the  money  that  may  be  awarded  by  the  final  decree  rendered  by 
the  court,  or  the  appellate  court  if  an  appeal  intervenes,  as  the  one 
or  the  other  course  shall  be  ordered  by  the  court ;  and  if  the  claim- 
ant shall  fail  to  make  such  application,  then  the  court  may,  on  the 
application  of  either  party,  upon  due  cause  shown,  order  a  sale  of 

1  Conk.  U.  S.  Adm.  303  et  seq.;  Adm.         ^  Id. 
Rule  29.  2  Adm.  Rule  26. 


PLEADING    AND    PRACTICE    IN    ADMIRALTY.  77 

the  ship  which  has  been  ai-rested,  and  the  proceeds  thereof  to  be 
brought  into  court,  or  otherwise  disposed  of  it  as  it  may  deem  most 
beneficial  for  all  concerned.^ 

§  71.  Stipulation  by  one  of  the  o'wners  of  a  vessel. — The  ap- 
praisement provided  for  by  the  rules  of  court  on  an  application  for 
the  delivery  of  a  ship  to  a  claimant  as  aforesaid  is  conclusive  upon 
the  party  to  whom  it  is  delivered  upon  such  an  application.  He 
cannot  afterwards  insist  that  the  ship  was  of  less  value  than  that 
at  which  it  was  appraised ;  nor  can  he  be  held  beyond  this  ap- 
praised value,  or  show  that  he  had  discharged  other  liens,  dimin- 
ishing the  amount  for  which  he  was  personally  liable  in  the  first 
instance.^ 

§  72.  Perishable  goods  sold. — If  the  goods  or  other  things  ar- 
rested are  perishable  or  liable  to  deterioration,  decay  or  injury  by 
detention  in  the  custody  of  the  marshal  pending  the  suit,  the  court 
will,  upon  the  application  of  either  party,  in  its  discretion,  order 
the  same  or  so  much  thereof  as  shall  be  perishable  or  liable  to  de- 
preciation, decay  or  injury  by  detention,  to  be  sold,  and  the  pro- 
ceeds, or  so  much  thereof  as  shall  be  suflScient  to  satisfy  any  decree 
which  may  be  rendered  in  the  case,  to  be  brought  into  court  to  abide 
the  event  of  the  suit ;  or  the  court  may,  upon  the  application  of  a 
claimant,  order  a  delivery  thereof  t«  him,  upon  due  appraisement 
to  be  had  under  its  direction,  either  upon  the  claimant  depositing  in 
court  so  much  money  as  the  court  shall  order,  or  upon  his  giving  a 
stipulation  with  sureties,  in  such  sum  as  the  court  shall  direct,  to 
abide  by  and  pay  the  money  awarded  by  the  final  decree  which  may  be 
rendered  by  the  court,  or  the  appellate  court  if  an  appeal  is  taken, 
as  the  one  or  the  other  course  is  ordered  by  the  court.^ 

It  is  not  a  matter  of  absolute  right  in  such  cases  for  either  party 
to  have  a  delivery  of  property  on  bail ;  but  if  a  ship  is  liable  to  be 
injured  by  a  delay  during  a  suit  for  salvage  or  the  cargo  to  dete- 
riorate, it  is  proper  to  apply  to  the  court  for  a  sale  thereof;  and  if,  on 
a  proper  showing  of  facts,  it  would  appear  to  be  for  the  interest  of  all 
parties  concerned,  the  court  should  order  the  sale.^  In  case  of  ap- 
peal the  thiyig  does  not  follow  the  appeal   to  the  higher  court,  but 

1  Adm.  Rule  11.  ^  Adra.  Rale  10. 

^  The  Virgin,  8  Pet.  538.     But   the  *  The    Nathaniel     Hoper,    3    Sum. 

ffiving    of    a   stipulation    waives   no  543.     See  also  The  Cheshire,  Blatch. 

rights  of  the  stipulator  in  reference  Pr.  Cas.  1G5;   The  Elly   Warley,  Id. 

to  original  liabil^^y  :  IG  Blatch.  569.  213. 


78  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

remains  in  the  court  below,  which  may  thereafter  order  a  sale  of  the 
property  on  a  proper  application  and  showing  as  aforesaid.^ 

§  73.  Where  a  state  court  has  acquired  jurisdiction. — The  dis- 
trict courts  will  not  interfere  in  a  proceeding  in  rem  with  property 
properly  in  the  custody  of  a  state  court.  The  tribunal  having  juris- 
diction, and  first  exercising  it  in  such  a  case,  may  proceed  with- 
out the  interference  of  the  other.  Thus,  if  a  party  attaches  a  ves- 
sel by  a  process  issued  from  a  state  court,  and  under  the  statutes  of 
a  state  providing  for  such  a  proceeding,  to  secure  a  claim  for  mate- 
rial furnished,  and  a  libel  is  subsequently  filed  by  another  person  in 
a  district  court  to  enforce  a  lien  for  material  furnished  to  repair  the 
same  vessel,  the  attachment  issued  from  the  state  court  would  have 
priority  over  that  of  the  federal  court,  and  the  plaintiff  in  the 
former  suit  could  not  be  prejudiced  by  the  latter.^ 

§  74.  Information  and  libel  on  seizures. — It  is  required  that  "all 
informations  and  libels  of  information  upon  seizures  for  any  breach 
of  the  revenue  or  navigation,  or  other  laws  of  the  United  States, 
shall  state  the  place  of  seizure,  Avhether  it  be  on  the  land  or  the 
high  seas,  or  on  navigable  waters  within  the  admiralty  and  maritime 
jurisdiction  of  the  United  States,  and  the  district  within  which  the 
property  is  brought,  and  where  it  then  is."^  It  is  further  required 
that  the  information  or  libel  of  information  "  propound  in  distinct 
articles  the  matters  relied  on  as  causes  of  forfeiture,  and  aver  the 
same  to  be  contrary  to  the  form  of  the  statute  or  statutes  of  the  United 
States  in  such  cases  provided  as  the  case  may  require ;"  and  it  must 
"  conclude  with  a  prayer  of  due  precess  to  enforce  the  forfeiture, 
and  to  give  notice  to  all  persons  concerned  in  interest  to  appear  and 
show  cause  at  the  return  day  of  the  process  why  the  forfeiture 
should  not  be  decreed."* 

It  is  necessary  that  the  information  or  libel  information  should 
aver  specially  all  the  facts  constituting  the  offence  charged ;  and  a  gen- 
eral reference  to  the  provisions  of  the  statutes  claimed  to  have  been 
violated  is  not   sufficient.^      But   liberal   provisions  are  made   for 

'  Jennings  v.  Carson,  4  Cr.  1.  '"  The  Caroline  v.  United    States,  7 

2  The  Fulton,  1  Paine  520.  See  also  Cr.  496  ;  The  Happet  and  Cargo  i\ 
Hine  u.  Trever,  4  Wall.  55  ;  s.  c,  17  United  States,  7  Cr.  389;  The  Mar- 
Id.  349  ;  Leon  w.  Galcerean,  11  Wall,  garet,  9  Wh.  421.  There  must  be 
185;  Donnell  v.  The  Starlight,  103  certainty,  in  case  several  illegal  acts 
Mas.  227.  are  charged,  as  to  which  constitutes 

^  Adm.  Kule  22.  the  offence  :   The  Caroline,  1  Brock. 

Md.  384.                           . 


PLEADING    AND    PE^^CTICE    IN    ADMIRALTY.  79 

amendments/  and  an  informal  libel  or  information  may  be  amended 
by  leave  of  the  court.  And  where  a  suit  was  brought  against  a 
vessel  and  master  jointly,  to  recover  a  penalty  for  importing  goods 
which  were  not  included  in  the  manifest,  it  was  held  proper  to 
dismiss  the  suit  as  to  the  master,  as  he  would  be  entitled  under 
the  statute  to  a  jury  trial,  and  proceed  against  the  vessel  in 
rern? 

It  is  manifest  from  the  provisions  of  this  rule  that  the  owner  of 
the  libelled  property  may  be  represented  by  another  in  the  presenta- 
tion of  the  claim.  Thus  while  the  ship  against  which  the  proceedings 
are  instituted  is  at  the  time  of  the  arrest  in  the  possession  of  the 
master  of  the  ship,  he  may  put  in  the  claim  as  bailee,  for  the  owner, 
and  verify  it.^ 

Such  claim  and  verification  is  by  no  means  conclusive  of  the  right 
of  property,  but  only  enables  the  claimant  to  controvert  the  claims 
of  the  libellant  and  allows  him  by  proofs  to  establish  his  rights 
tliereto.  If  it  should,  however,  appear  on  the  trial  that  his  claim 
was  not  well  founded,  whether  the  claims  of  the  libellant  were 
established  or  not,  and  that  some  other  party  not  represented  by 
the  claimant  was  the  owner,  or  had  an  adverse  interest  in  it,  the 
court  would  retain  the  property,  and  allow  him  an  opportunity  to 
claim  it.* 

§  75.  How  decrees  may  be  enforced. — The  final  decree  of  the 
district  court  in  admiralty  for  the  payment  of  money  may  be 
enforced  by  a  writ  of  execution,  to  which  the  libellant  is  entitled,  in 
the  nature  of  a  fieri  facias,  commanding  the  marshal  or  his  deputy 
to  levy  and  collect  the  amount  thereof  out  of  the  goods  and  chat- 
tels, lands  and  tenements,  or  other  estate  of  the  defendant  or  his 
stipulators.' 

The  execution  issues  summarily  against  stipulators,  upon  a  decree 
being  rendered  against  the  principals,  the  execution  of  the  stipula- 
tion by  them  being  regarded  as  an  agreement  to  submit  to  such 
decrees  as  may  be  entered  against  those  for  whom  they  have  become 
thereby  bound. ^     For  form  of  execution,  see  post,  Nos.  135,  146. 

§  76.  Prize  causes. — The  district  courts  have  exclusive  cogni- 
zance of  all  prize  causes,  except  as  provided  by  paragraph  six  of 

1  Adm.  Rule  24.  *  Conk.  Adm. 

^  The  United  States  v.  The  Steam-        ^  Adm.  Rule  21. 
ship  Queen,  1 1  Blatch.  416.  ^  Gaines  v.  Travis,  1  Abb.  Adm.  422 : 

^  Adm.  Rule  2^,  see  ^os<.  The  Blanche  Page,  16  Blatch.  1. 


80       FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

section  G29  of  the  Revised  Statutes,'  which  also  confers  concurrent 
jurisdiction  upon  the  circuit  court,  in  proceedings  to  condemn  prop- 
erty taken  as  prize  which  is  used  or  intended  to  be  used  to  aid  any 
insurrection.^ 

In  the  adjudication  of  these  cases  they  may  decree  a  restitution  of 
the  whole  or  a  part  of  the  captured  property,  and  they  may  decree 
damages  against  the  captors,  where  the  capture  was  wrongful  and 
without  probable  cause  ;^  and  if  the  seizure  was  not  only  illegal, 
but  a  gross  and  wanton  outrage,  the  court  is  not  limited,  in  its 
decree  of  damages  against  the  captors,  to  the  actual  pecuniary  loss  sus- 
tained by  the  seizure,  but  may,  in  analogy  to  the  doctrine  of  the  com- 
mon law  relating  to  damages  for  willful  outrage  and  oppression,  give 
such  damages  to  the  injured  party  as  will  compensate  for  the  men- 
tal suifering  and  humiliation  which  may  have  been  sustained  thereby, 
or  damages  of  a  punitive  or  exemplary  character.* 

By  the  general  principles  of  the  admiralty  law,  seizures  must  be 
made  upon  the  high  seas,  or  on  contiguous  waters  where  the  tide 
ebbs  and  flows  ;^  but  the  section  under  consideration  confers  exclu- 
sive jurisdiction  on  the  district  courts  in  all  cases  where  the  seizure 
is  made  on  land,  or  on  waters  not  within  admiralty  jurisdiction, 
except  in  cases  of  proceedings  for  the  condemnation  of  property 
captured  under  a  claim  that  it  was  used  or  intended  to  be  used  in 
aid  of  an  insurrection  against  the  government  of  the  United  States, 
in  which  latter  case  the  circuit  courts  have  also  jurisdiction.^ 

§  77.  In  cases  of  seizure  ;  process. — In  all  cases  of  seizure,  and 
in  other  suits  and  proceedings  in  rem,  the  process,  unless  otherwise 
provided  for  by  statute,  must  be  by  warrant  of  arrest  of  the  ship, 
goods  or  other  things  to  be  arrested;  and  the  marshal  is  thereupon 
required  to  arrest  and  take  the  ship,  goods  or  other  thing  into  his 
possession  for  safe  custody  ;  and  it  is  his  duty  to  give  public  notice 
thereof,  and  of  the  time  assigned  for  the  return  of  such  process  and 
the  hearing  of  the  cause,  in  such  newspaper  within  the  district  as 

1  Rev.  Stat.  ^  629,  par.  6  ;  Id.  par.  9.     Siren,  7  Wall.  162  ;  The  Brio;  Alerta 

2  Rev.  Stat.  ^  629  ;  sub.  6  ;  Id.  ^  5308.     v.  Moran,  9  Gr.  359  :   The  Estella,  4 
=*  Glass  V.  Sloop  Betsey,  3    Dall.  6     Wh.  307-,  Keene  i).  The  United  States, 

(1793);  Penhallow  v.  Doan,  3  Dall.  54;  5  Cr.  304;  United  States  v.  Schooner 

Talbot  V.  Janson,  3  Dall.  133  ;   Bino;-  Sally,  2  Cr.  406. 

ham   V.  Cabot,  3  Dall.  19;  Jennino;a  v.  ^  The  Sarah,  8  Wh.  391  ;  Id.  1  Pet. 

Carson,  4  Cr.  2 ;    Bowen    v.    United  549. 

States,  8  Cr.  110  ;  The  Estella,  4  Wh.  s  ^^^,   st^t.  ^  .'iGS,  sub.  8  ;    Id.  629, 

298;  The  Siren,  7  Wall.  152.  sub.  6  :    Id.  5308. 
*  The  Amiable  Nancy,  3  Wh.  546;  The 


PLEADING   AND    PRACTICE    IN    ADxMIRALTY.  81 

the  court  shall  order ;  and  if  there  is  no  newspaper  published 
therein,  then  in  such  other  public  places  in  the  district  as  the  court 
shall  direct.'  For  appropriate  form  in  such  cases  see  post,  No. 
1.58. 

§  78.  Condemnation  of  property  employed  in  aid  of  insurrection. 
— The  statutes  provide  for  the  seizure  and  condemnation  as  prize 
of  any  property  used  or  intended  to  be  used  in  aid  of  any  insur- 
rection against  the  government  of  the  United  States ;  ^  and,  as  we 
have  seen,  both  the  circuit  and  district  courts  have  cognizance  of 
such  causes.^  This  provision  of  the  Revised  Statutes  is  a  substan- 
tial re-enactment  of  the  provisions  of  the  act  of  Congress  of  August 
6,  1861,  under  which  it  was  determined  that  it  covered  all  descrip- 
tions of  property  both  real  and  personal,  whether  on  land  or  water ; 
that  the  proceedings  under  the  act  for  condemnation  of  real  estate 
or  other  property  on  land  should  be  shaped  in  conformity  with 
the  general  practice  in  admiralty  cases;  and  that  the  issues  of 
fact  in  such  cases  should,  on  the  request  of  either  party,  be  sub- 
mitted to  a  jury.'* 

§  79.  Authority  of  the  court  over  funds  derived  from  confiscated 
property. — The  proceeds  of  confiscated  property  paid  into  court 
are  under  its  control  until  they  are  distributed  pursuant  to  a  final 
decree  in  the  cause ;  and  if  they  are  withdrawn  without  authority 
of  the  court,  it  can  by  summary  proceedings  compel  their  restitu- 
tion.^ 

§  80.  Distinction  betv^een  instance  and  prize  causes- — The  distinc- 
tion between  the  instance  and  prize  side  of  the  court,  in  the  exer- 
cise of  admiralty  jurisdiction,  is  clear  and  important  to  be  observed. 
In  the  former  case  the  power  of  the  court  rests  upon  the  statutes, 
in  the  latter  upon  the  general  principles  of  the  common  law,  relat- 
ing to  admiralty  practice  and  procedure.  Hence,  if  the  records 
show  that  the  case  is  on  the  instance  side  of  the  court  for  a  for- 
feiture under  a  statute,  the  property  sought  to  be  condemned 
cannot  be  condemned  as  prize;  and  if  it  shows  a  proceeding  for  the 

^  Adm.  Rule  9.  474.      See     also    Morris'    Cotton,    8 

2  Rev.  Stat.  |  5308.  Wall.  507  ;  Mrs.  Alexander's  Cotton,  2 

3  Rev.  Stat.  I  563,  par.  9,  and  I  Wall.  404;  Union  Ins.  Co.  v.  United 
629,  par.  6.  States,    6    Wall.    759  ;    Armstrong's 

*  Union  Ins.  Co.  v.  United  States,  6  Foundry,  6  Wall.  766  ;  United  States 
Wall.  759.  See  also  The  Vengeance,  v.  Shares  of  Capital  Stock,  5  Blatch. 
3  Dall.  297;  The  Sarah,  8  Wh.  394.        231. 

^  Osborne  v.  United  States,  91  U.  S. 
6  ■ 


82      FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

condemiuition  of  property  as  prize,  it  cannot  be  condemned  under 
the  statutes  for  a  forfeiture  on  the  instance  side  of  the  court. ^ 

§  81.  Seizures  cognizable  in  the  district  court  of  the  district  into 
•which  the  property  may  be  taken. — In  case  of  the  seizure  for  for- 
feiture of  any  vessel  or  cargo  entering  any  port  or  harbor  which 
has  been  closed  by  the  President  of  the  United  States  in  ^rsuance 
of  law,  or  of  goods  or  chattels  coming  from  a  state  or  section  of  the 
country  declared  by  the  President  to  be  in  insurrection,  into  other 
parts  of  the  United  States,  or  of  any  vessel  or  vehicles  conveying 
such  property,  or  conveying  persons  to  or  from  such  state  or  sec- 
tion, or  of  any  vessel  belonging  in  whole  or  in  part  to  any  in- 
habitant of  such  state  or  section,  the  proceeding  may  be  prosecuted 
in  any  district  court  into  which  the  property  so  seized  may  be 
taken  and  proceedings  instituted  ;  and  the  district  courts  have  in 
such  cases  as  full  and  complete  jurisdiction  over  such  proceedings 
as  if  the  seizure  had  been  made  in  that  district.^  By  the  general 
practice  in  such  cases,  where  there  is  a  seizure  upon  the  high  seas, 
any  district  court  may  take  cognizance  of  proceedings  for  the  for- 
feiture, in  any  district  into  which  the  property  is  brought.^ 

§  82.  Trial  by  jury,  when. — Section  566  of  the  Revised  Statutes 
provides  that  "  the  trial  of  issues  of  fact  in  the  district  courts,  in 
all  causes  except  cases  in  equity  and  cases  of  admiralty  and  mari- 
time jurisdiction,  .  .  .  shall  be  by  jury."  And  in  certain  admiralty 
cases  which  relate  "  to  any  matter  of  contract  or  tort,  upon  or  con- 
cerning any  vessel  of  twenty  tons  burden  or  iipward  enrolled  and 
licensed  for  the  coasting  trade,  and  at  the  time  employed  in  the 
business  of  commerce  and  navigation  between  places  in  different 
states  and  territories  upon  the  lakes  and  navigable  waters  connect- 
ing the  lakes,  the  trial  of  issues  of  fact  shall  be  by  jury  when 
either  party  requires  it." 

Although  the  statute  provides  for  a  trial  of  issues  of  fact  in  cer- 
tain cases  b}'  a  jury,  still  this  right  may  be  waived,  and  the  parties 
may  stipulate  for  a  trial  of  these  issues  by  the  court,  even  upon  an 
ngreed  statement  of  facts. ^ 

1  United  States  v.  Weed,   5  Wall.  -  Rev.  Stat.  ^  5G4. 

'■'2;  Jecker  v.  Montgomery,  13  How.  ^  The    Abby,    1   Mason  360.      See 

4y8  ;  The   Brig  Caroline,  7   Cr.  49(5 ;  also  The  Maggie  Hammond,  9  Wall. 

The   Samuel,    1    Wh.   9;    The   Mary  435;    The  Merino,  9  Wh.  391. 

Anne,  8  Wh.  380:  The  Venice,  2  Wall.  MIenderson's  Distilled  Spirits,   14 

258;   Cappell   v.   Hall,  2  Wall.  542:  AVall.  40. 
Mrs.  Alexan<ler's  Cotton,  2  Wall.  404. 


PLEADING    AND    PRACTICE    IN    ADMIRALTY.  83 

§  83.  Libels  in  instance  causes. — What  is  required  to  be  stated 
in  libels  in  instance  causes  is  provided  by  rule  as  follows :  "  All 
libels  in  instance  causes,  civil  or  maritime,  shall  state  the  nature  of 
the  cause ;  as,  for  example,  that  it  is  a  cause  civil  and  maritime  of 
contract,  or  of  tort  or  damage,  or  of  salvage,  or  of  possession,  or 
otherwise  as  the  case  may  be  ;  and  if  the  libel  be  in  rem,  that  the 
property  is  within  the  district  ;  and,  if  in  personam,  the  names  and 
occupations  and  places  of  residence  of  the  parties.  The  libel  shall 
also  propound  and  articulate  in  distinct  articles  the  various  allega- 
tions of  fact  upon  which  the  libellant  relies  in  support  of  his  suit, 
so  that  the  defendant  may  be  enabled  to  answer  distinctly  and 
separately  the  several  matters  contained  in  each  article ;  and  it 
shall  conclude  with  a  prayer  of  due  process  to  enforce  his  rights, 
in  rem  or  in  personam  (as  the  case  may  require),  and  for  such 
relief  and  redress  as  the  court  is  competent  to  give  in  the  premises. 
And  the  libellant  may  further  require  the  defendant  to  answer  on 
oatk  all  interrogatories  propounded  by  him  touching  all  and  singu- 
lar the  allegations  in  the  libel  at  the  close  or  conclusion  thereof."' 
It  is  not  necessary  to  state  any  facts  which  constitute  a  defence  of 
the  claimant  of  the  vessel,  or  a  ground  of  exception  to  the  opera- 
tion of  the  law  on  which  the  libel  is  founded  ;^  but  the  libel  should 
show  facts  conferring  jurisdiction  on  the  court ;  and  no  evidence  is 
admissible  except  to  sustain  its  allegations.^  And  it  should  state 
in  distinct  allegations  the  matters  relied  upon  as  grounds  of  for- 
feiture.* 

§  84.  Amendments. — Liberal  provisions,  as  we  have  noticed,  are 
made  by  rule  for  amendments  of  pleadings  in  causes  of  admiralty  and 
maritime  jurisdiction ;  and  in  matters  of  form,  they  may  be  made 
at  any  time  on  motion  to  the  court,  as  of  course.  But  if  it  is 
desired  to  add  new  counts  to  the  information  or  libel,  or  amend 
upon  matters  of  substance,  this  may  be  done  upon  motion,  at  any  time 
before  a  final  decree,  only  on  such  terms  as  the  court  may  impose. 
And  where  any  defect  of  form  is  set  down  by  the  defendant  upon 
special  exceptions,  and  is  allowed,  the  court  may,  in  granting  leave 
to  amend,  impose  terms  upon  the  libellant.^ 

1  Adm.  Rule  23  ;  About  18,000  Gal-  328  ;  The  Havre,  1  Ben.  295  :  Bom  v. 

Ions  of  Distilled  Spirits,  5  Ben.  4.  The  Hornet,  Crabbe  426. 

^  The  Aurora  v.  The  United  States,  *  Distilled    Spirits,  etc.,  5  Ben.  4  j 

7  Cr.  382 ;  Thomas  v.  Lane,  2  Sum.  1.  Treadwell  v.  Joseph,  1  Sum.  390. 

^  The   Boston   and   Cargo,   1   Sum.  *  Adm.  Rule  24  ;  Town  r.  Steamship 


84  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

Under  this  rule,  where  a  libellant  proceeded  originally  against  a 
vessel,  master,  owners  and  pilot,  he  could  by  leave  of  court  amend 
his  libel  so  as  to  apply  to  the  vessel  and  master  only.^ 

§  85.  Defendant  to  give  security. — Upon  the  appearance  of  the 
defendant  in  a  suit  in  personam,  where  no  bail  has  been  taken  of 
him,  and  no  attachment  of  property  has  been  made  to  answer  the 
exigency'  of  the  suit,  the  court,  in  its  discretion,  may  require  the 
defendant  to  give  a  stipulation  with  sureties,  to  pay  all  costs  and 
expenses  which  may  be  awarded  against  him,  upon  a  final  adjudica- 
tion of  the  suit,  or  by  any  interlocutory  order  made  during  the 
progress  of  it."'  But  if  the  defendants  are  guilty  of  no  irregularity 
or  wrong  in  tendering  their  appearance  and  pleading  to  the  action, 
the  libellants  may  waive  the  right  to  claim  security,  and  this  will 
not  impair  the  validity  of  any  proceedings  in  the  cause  thereafter.^ 

For  forms,  seepos^  Nos.  114,  127-130. 

§  86.  Answer ;  verification. — In  all  causes  of  civil  and  mari- 
time jurisdiction,  whether  in  rem  or  in  personam,  the  defendant,  if 
he  desires  to  make  a  defence  to  the  suit,  should  make  a  proper 
answer  to  the  libel  upon  the  return  day  of  the  process,  or  such 
other  day  as  the  court  may  upon  a  proper  application  assign.  The 
answer  should  be  full,  explicit  and  distinct  to  each  separate  article 
and  each  separate  allegation  of  the  libel,  and  in  the  same  order  as 
numbered  in  the  libel,  and  in  like  manner  to  each  interrogatory 
propounded  at  the  close  of  the  libel ;  and  it  must  be  on  oath  or 
solemn  affirmation,*  except  in  cases  where  the  matter  in  dispute 
does  not  exceed  the  sum  or  value  of  fifty  dollars,  exclusive  of  costs, 
unless  the  court  shall  be  of  the  opinion  that  for  the  purposes  of 
justice^  the  general  rule  should  be  observed.  This  rule  is  appli- 
able  to  'cases  on  the  instance  side  of  the  court.®  If  a  plea  to  the 
jurisdiction  is  interposed,  it  must  be  by  the  defendant  himself  in 
propria  persona,  and  on  oath,  and  no  third  person  is  permitted  to 
file  such  a  plea.'' 

For  forms  of  claim  and  answer,  see  post,  No.  122. 

Western  Metropolis,  28   How.  Pr.  R.  *  Adm.  Rule  48. 

283.  ®  Gaiumell   v.  Skinner,  2  Gall.  45 : 

1  Newell  V.  Norton.  3  Wall.  257.  Dunlap's  Adm.  Pr.  209. 

^  Adm.  Rule  25.  ''  The  Rambler,  Bee's  Adm.  9.    The 

*  Pharo  V.  Smith,   18   How.   Pr.  R.  district  courts  may,  perhaps,  provide 
47.  by   rule   for  the  verification  of  plead- 

*  Adm.  Rule  27  ;  CofiBn  v.  Jenkins,  ings  by  other  parties:   Adm.  Rule  46. 
3  Story  108. 


PLEADING   AND    PRACTICE   IN    ADMIRALTY.  85 

§  87.  Exceptions  to  libel  and  answer. — Although  there  would 
appear  to  be  no  reason  why  a  demurrer  to  a  libel  might  not  be 
appropriate  where  it  is  insufficient  in  substance,  the  common  mode 
of  testing  its  sufficiency,  as  well  as  that  of  an  answer,  is  by  excep- 
tions taken  thereto.  The  exceptions  in  such  a  case  take  the  place 
of  a  demurrer  in  common  law  and  equity  proceedings.  The  want 
of  sufficiency,  fullness,  distinctness  or  relevancy  of  an  answer  to  the 
articles  and  interrogatories  in  the  libel  may  be  excepted  to,  and  if 
the  court  shall  consider  the  exceptions  well  taken  it  may  order  the 
defendant  forthwith,  or  within  such  time  as  it  may  direct,  to  answer 
over  and  pay  such  costs  as  may  be  deemed  reasonable.^ 

One  of  the  rules  prescribed  by  the  Supreme  Court  provides : 
"  The  libellant  may  except  to  the  sufficiency  or  fullness  or  dis- 
tinctness or  relevancy  of  the  answer  to  the  articles  and  interrog- 
atories in  the  libel ;  and  if  the  court  shall  adjudge  the  same  excep- 
tions, or  any  of  them,  to  be  good  and  valid,  the  court  shall  order 
the  defendant  forthwith,  or  within  such  time  as  the  court  shall 
direct,  to  answer  the  same,  and  may  further  order  the  defendant  to 
pay  such  costs  as  the  court  shall  adjudge  reasonable."^  Under 
this  rule  an  exception  for  impertinence  in  an  allegation  of  an  answer 
was  allowed,  where  it  served  no  legal  purpose  and  was  a  mere  slur 
on  the  libellant.^ 

Exceptions  may  also  be  taken  to  any  libel,  allegation  or  answer 
for  surplusage,  irrelevancy,  impertinence  or  scandal,  which  may  be 
referred  to  a  master,  and  if  he  shall  report  the  matter  so  excepted 
to  as  objectionable,  and  this  is  sustained  and  allowed  by  the  court, 
the  matter  will  be  expunged  at  the  cost  and  expense  of  the  party 
in  whose  pleading  the  objectionable  matter  is  found.* 

For  forms  in  equity,  see  post,  No.  49. 

§  88.  Default  on  failure  to  answer. — If  the  defendant  omits  or 
refuses  to  answer  the  libel  at  the  time  above  indicated,  the  court 
will  adjudge  him  to  be  in  contumacy  and  default,  and  that  the  libel 
be  taken  p)''''o  confesso  against  him,  and  the  court  will  proceed  to 
hear  the  cause  ex  parte  and  to  make  such  a  decree  as  law  and  justice 
may  require.  But  the  court  may  at  any  time  before  a  final  decree, 
upon  the  application  of  the  defendant,  set  aside  the  default  and 

1  2  Conk.  Adm.  238 ;  Adm.  Rules        ^  The  Pioneer,  Deady  58. 

24,  28,  36 ;  Town  v.  Steamship  West-        *  Adm.  Rule  36  ^  United  States  v. 
ern  Metropolis,  28  How.  Pr.  283.  Barrels  of  Alcohol,  10  Int.  Rev,  Rec. 

2  Adm.  Rule  28.  .17. 


86  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

permit  him  to  answer  the  libel,  upon  his  paying  all  the  costs  of  the 
suit  up  to  the  time  of  granting  leave  therefor.  If  the  defendant 
refuses  to  answer  any  particular  interrogatory,  the  charge  in  the 
lilDel  to  which  it  refers  will  be  taken  pro  confesso}  But  statements 
in  a  libel  which  contain  no  claim  for  damages,  and  for  which  no 
remedy  is  prayed,  need  not  be  answered  specifically.^ 

§  89.  When  a  further  ans-wer  will  be  required ;  •what  defendant 
may  object  to  answer. — If  the  defendant  answers,  but  does  not 
answer  fully,  explicitly  and  distinctly  to  all  matters  in  any  article 
of  the  libel,  the  libellant  may  file  exception  thereto,  and  if  it  is 
allowed  the  court  may,  by  attachment,  compel  the  defendant  to  make 
further  answer  thereto,  or  may  direct  the  matter  of  the  exception 
to  be  taken  pro  confesso  against  the  defendant  to  the  full  purport 
and  effect  of  the  article  to  which  it  purports  to  answer,  and  as  if  no 
answer  had  been  put  in  thereto.^  And  in  all  cases  where  a  default 
is  entered,  and  where  an  order  is  entered  that  the  pleadings  be  taken 
pro  confesso,  if  the  court  has  jurisdiction  of  the  subject-matter  and 
of  the  parties,  and  a  final  decree  is  entered,  the  presumption  is  that 
all  the  facts  necessary  to  warrant  the  decree  or  judgment  were  found, 
if  they  are  sufficiently  averred  in  the  pleadings.* 

But  "  the  defendant  may  object,  by  his  answer,  to  answer  any 
allegation  of  the  libel  which  will  expose  him  to  any  prosecution  or 
punishment  for  a  crime,  or  for  any  penalty,  or  any  forfeiture  of  his 
property  for  any  penal  oftence."^ 

In  a  proceeding  in  admiralty  by  information  for  a  forfeiture,  it 
was  held  that  the  claimants  should  not  be  required  to  produce  an 
invoice  called  for  by  the  United  States  as  libellant,  as  it  might 
expose  them  to  prosecution  and  punishment.^ 

§  90.  The  defendant  may  require  the  libellant  to  answer  inter- 
rogatories.— The  defendant  may  also,  at  the  close  of  his  answer, 
propound  to  the  libellant  any  interrogatories  touching  any  matters 
charged  in  the  libel,  or  any  matter  of  defence  set  up  in  his -answer, 
and  require  the  libellant  to  answer  the  same  upon  oath  or  solemn 
affirmation,  subject  to  the  like  exception  as  to  matters  which  shall 

'  Adm.  "Rule  29  ;  The  David  Pratt,  ^Miller   v.   The  United    States,  11 

Ware    509 ;    Miller    v.    The    United  Wall.  268. 

States,  11  Wall.  268.  ^  ^dm.  Rule  31. 

'■'The  Brig  Aldebaran,  Ole.  Adm.  «  The  United  States  r.  Twenty-eight 

R.  130.  Packages  of  Pins,  Gilpin  30G. 

=  Adm.  Rule  30. 


PLEADING    AND    PRACTICE    IN    ADMIRALTY.  ^T 

expose  the  libellant  to  any  prosecution,  or  punishment  or  forfeiture, 
as  is  set  forth  in  the  foregoing  section.  And  if  the  libellant  fails 
to  make  proper  answers  to  such  interrogatories,  the  court  may 
adjudge  him  to  be  in  default  and  dismiss  the  libel,  or  may  compel 
proper  answers  by  attachment,  or  take  the  subject-matter  of  the 
interrogatories  pro  confesso  in  favor  of  the  defendant,  in  the  same 
manner  and  to  the  same  extent  as  where  the  defendant  refuses  to 
answer  interrogatories  of  the  libellant,  as  the  court  in  its  discretion 
shall  deem  most  fit  to  promote  justice.^ 

§  91.  When  the  verification  of  an  answer  to  interrogatories  may 
be  dispensed  with. — We  have  noticed  that  the  general  rule  is  that 
the  answer  must  be  verified,  but  this  may  be  dispensed  with  in 
certain  cases.  Thus  "where  either  the  libellant  or  the  defendant 
is  out  of  the  country,  or  unable,  from  sickness  or  other  casualty,  to 
make  an  answer  to  any  interrogatory  on  oath  or  solemn  affirmation 
at  the  proper  time,  the  court  may  in  its  discretion,  in  furtherance 
of  the  due  administration  of  justice,  dispense  therewith,  or  may 
award  a  commission  to  take  the  answer  of  the  defendant  when  and 
as  soon  as  it  may  be  practicable."^ 

§  92.  New  facts  in  the  answ^er ;  practice  in  case  of. — If  a  defend- 
ant in  his  answer  alleges  new  facts,  these  are  to  be  treated  as  denied 
by  the  libellant,  and  no  replication,  general  or  special,  is  allowed. 
But  the  libellant  may,  within  such  time  after  the  answer  is  filed  as 
may  be  fixed  by  the  court,  either  by  a  general  rule  or  by  a  special 
order,  amend  his  libel,  so  as  to  confess  and  avoid,  or  explain,  or 
add  to  the  new  matters  set  forth  in  the  answer,  and  the  defendant 
may  in  like  manner,  within  such  time  as  may  be  fixed  by  the  court, 
amend  his  answer.^ 

§  93.  Cross-bill,  when  filed  ;  security  for  costs, — Whenever  the 
defendant  has  a  counter-claim  arising  out  of  the  same  cause  of 
action  for  which  the  original  libel  was  filed,  he  may  file  a  cross-bill 
therefor ;  and  in  such  a  case  the  respondents  thereto  are  required 
to  give  security  in  the  usual  form  to  respond  in  damages  as  claimed 
in  said  cross  libel,  unless  the  court  on  cause  shown  shall  otherwise 
direct;  and  proceedings  upon  the  original  libel  will  be  stayed  until 
such  security  be  given.* 

1  Adm.  Rule  32;  The  David  Pratt,  ^  Adm.  Rule  33. 
1  Ware  509;  Gainmell  v.  Skinner,  2  '  Adm.  Rule  51. 
Gallis.  45.  ♦  Adm.  Rule  53. 


88  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

§94.  Attachment  proceedings:  garnishee. — The  libellant  is  en- 
titled to  a  process  of  foreign  attachment  whenever  the  defendant 
has  concealed  himself  or  absconded  from  the  country,  and  the  goods 
to  be  attached  are  within  the  admiralty  jurisdiction  of  the  court ; 
and  it  may  issue  against  his  goods  and  chattels,  and  against  his 
credits  and  effects  in  the  hands  of  third  persons.^  And  in  such 
cases,  if  a  creditor  is  garnisheed,  he  is  required  to  answer  on  oath 
or  solemn  affirmation  as  to  the  debts  and  credits  and  effects  of  the 
defendant  in  his  hands,  and  to  all  such  interrogatories  touching  the 
same  as  may  be  propounded  to  him  by  the  libellant;  and  if  he  re- 
fuses or  neglects  so  to  do,  the  court  may  award  compulsory  process 
against  him.  If  he  admits  any  debts,  credits  or  effects  in  his 
hands,  the  same  shall  be  held  by  him  liable  to  answer  the  result  of 
the  suit.^  It  is  the  duty  of  the  garnishee  to  put  in  an  answer  as 
required  by  the  garnishment  notice.  But  if  he  makes  default,  and 
judgment  is  entered  against  the  defendant,  execution  will  issue  in 
the  first  instance  only  against  the  debts,  effects  and  credits  of  the 
principal  in  his  hands.  If  the  libellant  can  satisfy  the  court,  by 
affidavits  or  otherwise,  that  the  garnishee  has  sufficient  debts, 
effects  or  credits  of  the  principal  defendant  in  his  hands  to  satisfy 
the  judgment,  he  is  entitled  to  an  execution  against  him;  or  if 
necessary  to  have  an  answer,  he  may  have  compulsory  process  in 
personam  to  compel  the  same.^ 

§  95.  Attached  property  in  the  hands  of  a  third  party,  when 
brought  into  court. — It  is  provideil  by  rule  that  "in  cases  of  mari- 
ners' wages,  or  bottomry,  or  salvage,  or  other  proceedings  in  rem, 
where  freight  or  other  proceeds  of  property  are  attached  to  or  are 
bound  by  the  suit,  which  are  in  the  hands  or  possession  of  any 
person,  the  court  may,  upon  due  application  by  petition  of  the 
party  interested,  require  the  party  charged  with  the  possession 
thei-eof  to  appear  and  show  cause  why  the  same  should  not  be 
brought  into  court  to  answer  the  exigency  of  the  suit ;  and  if  no 
sufficient  cause  be  shown,  the  court  may  order  the  same  to  be  brought 
into  court  to  answer  the  exigency  of  the  suit ;  and  upon  failure  of 
the  party  to  comply  with  the  order,  may  award  an  attachment  or 
other  compulsive  process,  to  compel  obedience  thereto."*     In  some 

1  Mauro  r.  Almeida,  10  Wh.  473.  ^  Story  v.  Rennell,  1  Sprague  418; 

2  Adin.  Rule  37.  A<lm.  Rule  37. 

^  Adm.  Rule  38. 


PLEADING    AND    PRACTICE    IN    ADMIRALTY.  89 

cases  where  the  court  has  parted  with  the  possession  of  the  prop- 
erty, on  the  giving  of  a  stipulation,  and  justice  requires  the  court 
to  retake  the  same,  and  it  is  in  the  actual  or  constructive  possession 
of  a  person  not  a  party  to  the  stipuhation,  it  can  only  be  done  by  a 
monition  and  not  by  an  execution  in  the  first  instance.*  This  is 
the  rule  of  practice  in  prize,  bottomry  and  salvage  cases  as  well  as 
in  libels  for  wages. ^ 

§  96.  Where  the  libellant  does  not  appear  ;  dismissal. — We  have 
noticed  the  practice  and  the  rights  of  the  libellant  in  case  the  de- 
fendant fails  to  appear,  and  it  is  here  appropriate  to  notice  the 
practice  and  the  rights  of  the  defendant  in  case  the  libellant  fails 
to  appear.  Where  the  latter  does  not  appear  and  prosecute  his 
suit  according  to  the  course  and  orders  of  the  court,  he  will  be  con- 
sidered in  default  and  contumacy,  and  the  court  will  upon  the  ap- 
plication of  the  defendant  pronounce  the  suit  deserted,  and  dismiss 
the  same  with  costs.' 

§  97.  A  decree  on  default  may  be  rescinded. — Where  the  matter 
of  a  libel  shall  have  been  decreed  against  a  defendant,  on  account 
of  his  contumacy  and  default,  the  court  may,  on  motion  by  him 
and  the  payment  of  costs,  at  any  time  within  ten  days  after  the 
decree  has  been  entered,  rescind  the  decree  and  grant  a  rehearing 
of  the  cause.  The  court  may,  however,  make  the  rehearing  con- 
ditional upon  the  defendant's  submitting  to  such  further  orders  and 
terms  in  the  premises  as  it  may  direct.*  But  a  rehearing  cannot 
be  had  after  the  term  of  the  court  has  passed  at  which  the  decree 
was  rendered.^  In  this  case  it  is  expressly  provided  that  the  re- 
hearing may  be  had  only  on  motion.  This  should  be  in  writing. 
And  in  all  cases  where  a  party  is  entitled  to  any  order  or  judgment 
of  the  court,  for  a  neglect  of  duty,  or  a  disregard  of  the  rules  of 
pleading  or  the  orders  of  the  court  by  the  adverse  party,  as  where 
the  libellant  is  entitled  to  a  default  on  the  neglect  of  the  defendant 
to  answer  in  due  time,  the  proper  practice  is  to  file  a  motion  in 
writing  setting  forth  the  facts,  and  asking  the  court  to  take  such 
action  as  the  party  may  be  entitled  to. 

For  form  of  decree  pro  confesso,  see  post,  No.  154. 

1  The  Gran  Para,  10  Wh.  497.  *  The  New  England,  3  Sum.  495 ; 

2  Shepard   v.   Taylor,    5    Pet.   675  ;     Adra.  Rule  40. 

Adm.  Rule  38.  5  r^^]^^  Steamboat  New  England,  3 

^  Adm.  Rule  39.  Sura.  495. 


90  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

§  98.  Proceeds  of  property  ;  deposit  of  money. — All  sales  01 
property  under  any  decree  in  admiralty  must  be  made  by  the  mar- 
shal or  his  deputy,  or  other  proper  officer  designated  by  the  court 
where  the  marshal  is  a  party  in  interest,  in  pursuance  of  the  orders 
of  the  court,  and  it  is  the  duty  of  the  officer  making  the  sale  to 
forthwith  pay  the  same  into  the  registry  of  the  court,  to  be  disposed 
of  according  to  law;  and  such  moneys  must  be  deposited  in  some 
bank  designated  by  the  court,  and  in  the  name  of  the  court,  and 
can  only  be  drawn  out  on  checks  signed  by  the  judge  of  the  court 
and  countersigned  by  the  clerk,  stating  on  whose  account  and  for 
whose  use  it  is  drawn,  and  in  what  suit,  and  out  of  what  fund  in 
particular  it  is  paid.  And  it  is  the  duty  of  the  clerk  to  keep  a 
regular  book  containing  a  memorandum  and  copy  of  all  checks  so 
drawn  and  the  date  thereof.' 

The  same  rule  prevails  in  case  of  interlocutory  sales  as  those 
made  under  a  final  decree;^  also,  where  the  sale  is  made  by  the 
order  of  the  court  on  a  partial  credit.  If,  in  the  latter  case,  pay- 
ments are  to  be  made  in  installments,  and  notes,  bonds  or  other  se- 
curities are  taken  therefor,  the  creditor  has  a  right  to  insist  that 
they  be  brought  into  court,  but  for  convenience  they  are  sometimes 
permitted  to  remain  in  the  hands  of  the  officer.^ 

§  99.  Party  interested  may  intervene  for  proceeds. — Ii  a  party 
has  an  interest  in  any  proceeds  in  the  registry,  he  may  intervene 
by  petition  and  summary  proceedings  pro  interesse  sua  for  a  delivery 
thereof  to  him  ;  and  upon  due  notice  thereof  to  the  adverse  party, 
if  any,  the  court  will  proceed  summarily  to  hear  and  decide  upon 
the  same  and  decree  therein  according  to  law  and  justice.  But  if 
such  petition  or  claim  shall  be  deserted,  or  if,  upon  a  hearing,  it 
shall  be  dismissed,  the  court  may,  in  its  discretion,  award  costs 
against  the  petitioner  in  favor  of  the  adverse  party.* 

Where  a  person  held  a  mortgage  upon  the  moiety  of  a  vessel 
which  was  afterwards  libelled,  condemned  and  sold  by  process  in 
admiralty,  and  the  proceeds  brought  into  the  registry  of  the  court, 
it  was  held  that  he  could  not  file  a  libel  against  a  moiety  of  those 
proceeds,  but  that  his  proper  course  was  to  appeal  as  a  claimant  by 
a  petition  for  a  distributive  share  of  the  proceeds.^ 

^  Adm.  Rules  41  and  42.  ^  Schuchardt  v.  The  Angelique,  19 

^  The   Avery   and   Cargo,    2   Gall.  IIov.  239.     But  see,  in  case  of  mort- 

308.  S^g6  foi'  advances   made,  Leland  v. 

3  Walls  V.  Thornton,  2  Brock.  422.  The  Medora,  2  Woodb.  &  M.  92. 
*  Adm.  Rule  43. 


PLEADING    AND    PRACTICE    IN    ADMIRALTY.  91 

A  party  having  an  interest  in  the  proceeds  may  intervene,  though 
this  involves  the  settlement  of  partnership  accounts.^  And  the 
surplus  remaining  in  the  registry  after  the  satisfaction  of  a  prior 
lien  creditor  may  be  appropriated  to  the  payment  of  other  liens,  on 
the  proper  intervention  of  the  holders,  but  not  for  the  satisfaction 
of  debts  arising  on  contracts  of  a  merely  personal  character.^ 

The  owner  and  mortgagee  may  both  appear,  and  by  answer  or 
petition  claim  the  proceeds  of  the  ship,  after  the  satisfaction  of  the 
claims  of  a  libellant  who  sues  on  a  bottomry  bond,'^ 

§  100.  Matters  may  be  referred  to  commissioners. — The  COUrt  has 
authority  to  refer  any  matters  arising  during  the  progress  of  a  suit 
to  one  or  more  commissioners,  where  it  shall  deem  it  expedient  or 
necessary  for  the  purposes  of  justice ;  and  such  commissioners 
possess  all  the  powers  which  are  usually  given  to  or  exercised  by 
masters  in  chancery  in  reference  to  them,  and  may  administer 
oaths  and  examine  the  parties  and  witnesses  touching  the  premises.* 
And  it  may  thus  refer  the  question  of  the  validity  of  a  bottomry 
lien  and  direct  the  commissioner  to  ascertain  and  report  the  actual 
constituents  of  the  lien.^  So,  where  it  appears  to  the  court  that 
the  main  questions  in  controversy  are  in  reference  to  accounts 
between  the  parties  as  master  and  owner  of  a  vessel,  it  has  been 
held  proper  to  refer  the  case  to  a  commissioner.^ 

§  101.  'Bail  on  arrest;  imprisonment  for  debt. — Where  a  simple 
warrant  of  arrest  is  issued  and  executed  in  suits  in  personam^  bail 
is  required  to  be  taken  by  the  marshal  and  the  court  only  in  those 
cases  in  which  it  is  required  by  the  laws  of  the  state  where  the 
arrest  is  made,  upon  similar  or  analogous  process  issuing  from  the 
state  courts.  And  imprisonment  for  debt  is  abolished  on  process 
issuing  out  of  the  admiralty  court,  in  all  cases  where,  by  the  laws 
of  the  state  in  which  the  court  is  held,  imprisonment  for  debt  is 
abolished,  upon  similar  or  analogous  proceedings  issued  from  a 
state  court. ^ 

§  102.  Extension  of  admiralty  jurisdiction. — We  have  considered 
those  matters  essential  to  confer  admiralty  jurisdiction  on  the  dis- 

1  The  Goldsmith,  1  Newb.  123.  ^  Shaw ?;.  Collier,  18  How.  Pr.R.  238. 

2  Brackett  v.  The  Hercules,  Gilp.  «  Shaw  v.  Collier,  28  How.  Pr.  238. 
184;  Harper  v.  The  New  Brig,  Id,  ^Adm.  Rule47.  In  the  case  of  bail 
536.  See  also  The  Lottawanna,  21  the  court  will  not  permit  a  party  to  be 
Wall.  558.  held  to  bail  in  two  places  at  the  same 

^  The  Panama,  01c.  343.  time  for  the  same  cause  of  action  : 

*  Adm.  Rule  44.  Bins'ham  v.  "VVilkins,  Crabbe  50. 


92  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

trict  courts,  from  -which  it  will  appear  that  they  have  jurisdiction 
of  all  proceedings  in  admiralty  on  maritime  contracts  and  for  mari- 
time torts,  and  that  their  jurisdiction  depending  upon  locality  is  not 
limited,  by  the  rules  of  admiralty  in  England,  to  the  high  seas  and 
to  waters  where  the  tide  ebbs  and  flows,  but  extends,  at  least  in 
certain  cases,  over  the  inland  lakes  and  navigable  rivers.  The 
general  practice  and  mode  of  procedure  in  these  courts,  as  courts 
of  admiralty  and  maritime  jurisdiction,  is  substantially  the  same  as 
that  which  obtained  in  England  at  the  time  of  the  organization  of 
our  government. 

The  term  high  seas,  in  English  admiralty  law,  embraced  not  only 
the  seas  proper,  but  all  arms,  estuaries,  harbors,  havens  and  rivers 
wherever  the  tides  ebbed  and  flowed,  but  not  any  part  of  said  waters 
that  lay  within  the  body  of  a  county.  The  ebb  and  flow  of  the  tides 
in  England  was  the  test  of  the  navigability  of  inland  waters,  and 
on  this  account  it  was  made  the  limit  of  admiralty  jurisdiction  over 
such  waters ;  and  the  common  law  courts,  ever  jealous  of  the  en- 
croachments of  the  admiralty,  which  was  a  branch  of  the  civil  law, 
succeeded  in  excluding  its  jurisdiction  from  any  part  of  the  waters 
of  the  sea,  even  where  the  tide  ebbed  and  flowed,  if  it  lay  within 
the  body  of  any  county,  on  the  ground  that  in  such  cases  the  com- 
mon law  courts  and  remedies  would  be  ample  for  the  administration 
of  justice,  either  in  suits  on  contracts  or  for  torts  of  a- maritime 
character,  and  that,  by  the  spirit  of  the  English  constitution,  they 
came  within  the  powers  and  jurisdiction  of  those  courts,  which 
secured  a  trial  of  issues  of  fact  by  a  jury,  whereas  the  admiralty 
practice  excluded  a  trial  by  jury,  the  court  deciding  both  questions 
of  law  and  of  fact,  which  was  distasteful  to  the  common  law  courts 
and,  generally,  to  the  people. 

This  limitation  does  not,  as  we  have  observed,  apply  to  the  juris- 
diction of  the  district  courts  of  this  country  sitting  in  admiralty. 
It  has  been  expressly  held  that  they  could  take  cognizance  of  a 
proceeding  in  admiralty  for  a  tort  committed  on  a  river  navigable 
from  the  sea,  although  it  occurred  above  tide  water  and  within  the 
boundary  of  a  county.^ 

^  United  States  v.  The  Betsey,  1  Id.  son  v.  Leland,  22  Id.  48  ;   Sturgis  v. 

443 ;  Jackson  w.  Steamboat  Magnolia,  Boyer,  24  Id.   110;    Propeller  Com- 

20  How.  296  ;  Walsh  w.  Rogers,  13  Id.  merce,    1    Black    580;    Norwich    v. 

283  ;  Ure  v.  Coflfman,  19  Id.  56;  Nel-  Wright,  13  Wall.  104. 


PLEADING   AND    PRACTICE   IN    ADMIRALTY.  93 

Tlie  general  principles  of  admiralty  law  we  inherited  from  the 
mother  country,  so  far  as  they  were  adapted  to  our  circumstances 
and  wants  ;  but  the  rule  limiting  the  jurisdiction  of  courts  of  admi- 
ralty to  the  high  seas  and  to  tide  waters  was  not  particularly  appli- 
cable to  this  country,  where  we  have  a  chain  of  large  inland  lakes 
and  large  rivers  navigable  from  the  sea  for  thousands  of  miles,  and 
whose  navigation,  in  many  cases  far  above  tide  water,  contributes 
largely  to  increase  the  commerce  and  general  business  prosperity 
of  the  country.  Under  such  circumstances  there  is  no  reason  for 
the  limitation  of  admiralty  jurisdiction  of  our  national  courts  to 
tide  waters,  and  where  the  reason  for  the  rule  ceases  the  rule  itself 
should  cease. 

We  have  noticed  that  Congress  has  at  different  times  passed  acts 
to  confer  jurisdiction  in  admiralty  upon  these  courts,  in  such  cases, 
under  certain  limitations  ;  but  it  may  be  questionable  whether  any 
such  legislation  was  required  in  the  light  of  the  broad  and  compre- 
hensive views  on  this  subject  recently  expressed  by  the  justices  of 
our  Supreme  Court.^ 

§  103.  Embezzlement  by  the  master  of  a  vessel ;  liability  of  the 
owner  limited. — It  is  provided  by  section  4283  of  the  Revised  Stat- 
utes that  "  the  liability  of  the  owner  of  any  vessel  for  any  embez- 
zlement, loss  or  destruction  by  any  person  of  any  property,  goods 
or  merchandise  shipped  or  put  on  board  of  such  vessel,  or  for  any 
loss,  damage  or  injury  by  collision,  or  for  any  act,  matter  or  thing, 
loss,  damage  or  forfeiture  done,  occasioned  or  incurred,  without 
the  privity  or  knowledge  of  such  owner  or  owners,  shall  in  no  case 
exceed  the  amount  of  the  interest  of  such  owner  in  such  vessel  and 
her  freight  then  pending."^ 

In  such  a  case,  if  there  are  several*  freighters  or  owners  of  goods, 
wares  and  merchandise  on  the  same  voyage,  and  the  whole  value  of 
the  vessel  and  her  freight  on  the  voyage  is  not  sufficient  to  make 
compensation  to  each  of  them,  they  can  only  receive  compensation 
in  proportion  to  their  respective  losses  ;  and  if  said  owner  or  owners 
desire  to  claim  the  benefit  of  such  limitation  of  liability,  they  may 
file  a  libel  or  petition  in  any  district  court  of  the  United  States 

'  The  Hine,  4  Wall.  555 ;  The  Gen-        ^  N(jj.^;^,j^  Company  v.  Wright,  13 
esee  Chief,  12  How.  443  ;  The  Moses     Wall.  1U4  ;  Allen  v.  McKay,  1  Sprague 
Taylor,  4  Wall.  411  ;  The  Eagle,  8  Id.     219. 
15;   The  Steamboat  Co.  v.  Chase,  IG 
Id.  522. 


94  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

where  the  ship  or  vessel  may  be  libelled  to  answer  for  such  embezzle- 
ment, loss,  destruction,  damage  or  injury ;  or  if  the  ship  or  vessel 
be  not  libelled,  then  in  the  district  court  of  any  district  in  which 
the  said  owner  or  owners  may  be  sued  in  that  behalf,'  in  which 
libel  or  petition  they  should  set  forth  the  facts  and  circumstances 
on  which  such  limitation  of  liability  is  claimed,  and  pray  proper 
relief  in  that  behalf;  and  it  is  the  duty  of  the  court  thereupon  to 
cause  due  appraisement  to  be  made  of  such  ship  or  vessel  and  her 
freight  for  the  voyage,  and  to  make  an  order  for  the  sale  of  the 
same  and  payment  of  the  proceeds  into  court,  or  for  the  giving 
of  a  stipulation,  with  sureties,  for  the  payment  of  the  amount  of 
the  appraised  value  into  court  whenever  the  same  shall  be  so 
ordered ;  unless  the  said  owner  or  owners  shall  elect  to  transfer 
his  or  their  interest  in  such  ship  or  vessel  and  freight  to  a 
trustee,  to  be  appointed  by  the  court,  as  provided  by  section  4285 
of  the  Revised.  Statutes,  in  which  case  the  court  is  required  to  make 
an  order  to  that  effect ;  and  upon  compliance  with  such  order,  the 
court  is  required  to  issu€  a  monition  against  all  persons  claiming 
damages  for  the  aforesaid  causes,  or  either  of  them,  citing  them  to 
appear  before  the  court  and  make  due  proof  of  their  respective 
claims  on  or  before  a  certain  time  to  be  named  in  said  writ,  not 
less  than  three  months  from  the  issuing  of  the  same.  Public  notice 
of  such  monition  is  required  to  be  given  as  in  other  cases,  and  such 
further  notice  served  through  the  post-office,  or  otherwise,  as  the 
court  in  its  discretion  may  direct ;  and  the  court  is  further  required, 
on  the  application  of  such  owner  or  owners,  to  make  an  order  to  re- 
strain the  further  prosecution  of  all  and  any  suit  or  suits  against 
said  owner  or  owners  in  respect  to  any  such  claim  or  claims.^ 

§  104.  Proof  made  before' a  commissioner. — The  proof  of  all 
claims  made  in  pursuance  of  the  monition  aforesaid  must  be  made 
before  a  commissioner  to  be  designated  by  the  court,  subject  to  the 
right  of  any  person  interested  to  question  or  controvert  the  same. 
It  is  the  duty  of  such  commissioner,  on  the  completion  of  said 
proofs,  to  make  a  report  of  the  claims  so  proven,  and  after  hearing 
any  exqeptions  thereto,  and  a  confirmation  of  such  report,  the 
moneys  paid  or  secured  to  be  paid  into  court  as  aforesaid,  or  the 
proceeds  thereof,  and  of  the  freight  (after  the  payment  of  the  costs 

^  Adm.  Rule  57  ;  Rev.  Stat.  §  4284.      Ben.    55  :    The   City    of  Norwich,    I 
^Adm.    Rule   54;    The   Bristol,    4     Ben.  89.  ' 


PLEADING    AND    PRACTICE    IN    ADMIRALTY.  95 

and  expenses),  must  be  divided  p'o  rata  amongst  the  several  claim- 
ants in  proportion  to  the  amount  of  their  respective  claims,  duly 
proved  and  confirmed  as  aforesaid,  saving,  however,  to  all  parties 
any  prioi'ity  to  which  they  may  be  legally  entitled.^ 

§  105.  Who  may  defend  in  such  cases. — "  In  the  proceedings  afore- 
said, the  said  owner  or  owners  shall  be  at  liberty  to  contest  his  or 
their  liability,  or  the  liability  of  said  ship  or  vessel,  for  said  embez- 
zlement, loss,  destruction,  damage  or  injury  (independently  of  the 
limitation  of  liability  claimed  under  said  act);  provided,  that  in  his 
or  their  libel  or  petition  he  or  they  shall  state  the  facts  and  circum- 
stances by  reason  of  which  exemption  from  liability  is  claimed; 
and  any  person  or  persons  claiming  damages  as  aforesaid,  and  who 
shall  have  presented  his  or  their  claim  to  the  commissioner  under 
oath,  shall  and  may  answer  such  libel  or  petition,  and  contest  the 
right  of  the  owner  or  owners  of  said  ship  or  vessel,  either  to  an 
exemption  from  liability,  or  to  limitation  of  liability  under  the  said 
act  of  Congress  [statute],,  or  both."" 

But  the  provisions  of  the  statute  above  referred  to  do  not  aflfect 
any  remedy  which  a  party  may  be  entitled  to  against  the  masters, 
oflScers  or  seamen,  for  or  on  account  of  the  damages  aforesaid.^ 

§  106.  Further  proof  taken  on  appeal  in  the  circuit  court. — In 
case  of  an  admiralty  appeal,  further  proof  may  be  taken  in  the 
circuit  court,  by  deposition,  before  some  commissioner  appointed  by 
that  court,*  pursuant  to  sections  863,  864  and  865  of  the  Revised 
Statutes,  or  before  the  officers  therein  mentioned.  The  deposition 
in  such  cases  must  be  upon  oral  examination  and  cross-examination, 
unless  the  court  in  which  such  appeal  is  pending,  or  one  of  the  judges 
thereof,  shall,  upon  motion,  allow  a  commissioner  to  take  the  same 
upon  written  interrogatories  and  cross-interrogatories.  If  taken  by 
oral  examination,  the  adverse  party  must  be  notified  by  the  magis- 
trate before  whom  it  is  to  be  taken,  or  by  the  clerk  of  the  court  in 
which  the  appeal  is  pending,  of  the  time  and  place  of  the  taking  of 
the  same,  and  before  whom,  and  that  he  can  appear  and  put  inter- 
rogatories if  he  thinks  fit ;  and  this  notice  must  be  served  on  the 
adverse  party  or  his  attorney,  allowing  time  for  their  attendance 
after  being  notified,  not  less  than  twenty-four  hours,  and  in  addition 

'  Adm.  Rule  55  ;    Providence   and         ^  Rev.  Stat.  §  4287. 
N.  Y.  S.  S.  Co.,  15  Int.  Rev.  Rec.  193.  *  Adm.  Rule  49. 

2  Adm.  Rule  56. 


96  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

thereto  one  day,  Sundays  exclusive,  for  every  twenty  miles  travel ; 
but  the  court  where  the  appeal  is  pending,  or  either  of  the  judges 
thereof,  may,  upon  motion,  increase  or  diminish  the  length  of  notice 
above  set  forth. ^  If  the  evidence  is  so  contradictory  in  a  revenue 
or  instance  cause  as  to  make  a  decision  difficult,  the  court  may 
order  further  proof.^ 

§  107.  When  district  and  circuit  courts  may  regulate  practice. — 
It  is  provided  by  a  rule  in  admiralty  that,  in  all  cases  not  provided 
for  by  the  rules  prescribed  by  the  Supreme  Court  of  the  United 
States  regulating  the  practice  in  admiralty,  the  district  and  circuit 
courts  may  regulate  the  same  in  said  courts  respectively,  in  such 
manner  as  they  shall  deem  most  expedient  for  the  proper  adminis- 
tration of  justice.^ 

§  108.  Suits  on  debentures. — Whenever  an  importer  of  mer- 
chandise enters  it  for  exportation  and  pays  the  duties  thereon,  he 
is  usually  entitled  to  a  certain  amount  of  the  sum  thus  paid  on  the 
exportation  thereof,  called  a  drawback.^  And  if  the  importer  makes 
a  request  therefor  in  writing,  it  is  the  duty  of  the  collector  of  the 
port  of  entry  to  issue  a  certificate  of  drawback  in  writing  showing 
that  the  importer  is  entitled  to  a  certain  sum  from  the  government 
on  the  exportation  of  the  identical  goods  on  which  the  import  duties 
have  been  paid,  which  certificates  are  called  debentures.  These 
debentures  are  assignable  by  delivery  and  indorsement,  and  in  case 
of  the  refusal  of  the  collector  of  the  district  where  it  was  granted, 
for  a  longer  period  than  three  years  after  the  same  becomes  due 
and  payable,  to  pay  the  same,  as  provided  by  the  ninth  chapter  of 
the  Revised  Statutes,  the  assignee  may  bring  suit  thereon  against  the 
person  to  whom  it  was  originally  granted,  or  against  any  indorser 
thereof,  either  in  the  district  or  circuit  courts  of  the  United  States.^ 

§  109.  Suits  for  damages  against  conspirators ;  equal  rights  of  all 
persons. — Chapter  xxiv.  of  the  Revised  Statutes  provides  for  the 
recovery  of  damages  sustained  by  any  person  on  account  of  any 
injury  to  his  person  or  property,  or  of  the  deprivation  of  any  right 
or  privilege  of  a  citizen  of  the  United  States  by  any  act  done  in 
furtherance  of  any  conspiracy  mentioned  in  said  chapter;  and  the 

^  See  also  Adm.  Rule  49.  ^  Adin.  Rule  46 ;  Beers  v.  Haugh- 

2  The  Samuel,  1  Wh.  9.     See  also     ton,  9  Pet.  329. 
The  Georgia,  7  Wall.  32 ;  The  Ocean         *  See  Rev.  Stat.  ch.  ix. 
Queen,  6  Blatch.  24.  «  Rev.    Stat.  ^§    563,  sub.  10,  629, 

sub.  8,  3039,  3040. 


PLEADING    AND    PRACTICE   IN    ADMIRALTY.  97 

district  courts  have  jurisdiction  of  all  such  suits.^  So  these  courts 
have  jurisdiction  of  suits  at  law  or  in  equity  to  redress  the  depriva- 
tion, under  the  color  of  law,  ordinance,  regulation,  custom  or  usage 
of  any  state,  of  any  right,  privilege  or  immunity  secured  by  the 
Constitution  of  the  United  States,  or  by  any  law  of  the  United 
States,  to  persons  within  the  jurisdiction  thereof.^ 

§  110.  Suits  to  recover  offices,  remove  officers  and  against  national 
banks. — The  district  court  has  also  jurisdiction  of  suits  to  recover 
the  possession  of  any  office  except  that  of  elector  of  President  or 
Vice-President,  or  delegate  in  Congress,  or  member  of  a  state  legis- 
lature, authorized  by  law  to  be  brought,  wherein  it  appears  that  the- 
sole  question  touching  the  title  to  such  office  arises  out  of  a  denial 
of  the  right  to  vote,  to  any  citizen  offering  to  vote,  on  account  of 
race,  color  or  previous  condition  of  servitude.  But  such  jurisdiction 
only  extends  so  far  as  to  determine  the  rights  of  the  parties  to  suchi 
office  by  reason  of  the  denial  of  the  right,  guaranteed  by  the  Consti- 
tution and  secured  by  any  law,  to  enforce  the  right  of  citizens  of  the 
United  States  to  vote  in  all  the  states.^  So  it  has  jiurisdiction  of 
proceedings  by  quo  warranto  prosecuted  by  any  district  attorney 
for  the  removal  from  office  of  any  person  holding  the  same,  except 
as  a  member  of  Congress  or  of  a  state  legislature,  contrary  to  the 
provisions  of  the  third  section  of  the  fourteenth  article  of  the 
amendment  to  the  Constitution  of  the  United  States.*  So  it  has- 
jurisdiction  of  all  suits  by  or  against  any  association  established 
under  any  law  providing  for  national  banking  associations  within 
the  district  for  which  the  court  is  held,^  and  of  all  suits  brought  by 
any  alien  for  a  tort  only,  in  violation  of  the  law  of  nations,  or  of  a 
treaty  of  the  United  States.^ 

§  111.  Suits  against  consuls  and  vice-consuls. — The  district  court 
has  also  jurisdiction  of  suits  against  consuls  and  vice-consuls,  except 
for  offences  above  that  of  a  tort  in  violation  of  the  law  of  nations, 
or  of  a  treaty  of  the  United  States.^  International  law  does  not 
exempt  consuls  from  the  jurisdiction  of  the  circuit  courts,  and  they 
may  sue  and  be  sued  in  thtm  within  the  district  of  their  residence, 
if  the  value  of  the  amount  in  dispute  exceeds  five  hundred  dollars.^ 

1  Rev.  Stat.  §  563,  sub.  11.  *  Rev.  Stat.  |  563,  sub.  14. 

2  Id.  sub.  12;   Rev.  Stat.  H  1977,         ^  Kev.  Stat.  I  563,  sub.  15. 
1979.  «  Rev.  Stat.  |  563,  sub.  16. 

^  Rev.  Stat.  |  563,  sub.  13 ;  see  also        '  Rev.  Stat.  I  563,  sub.  17. 
§  2610.  *  Lorway  v.   Lousada,   1  Am.  Law 

7 


98  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

The  jurisdiction  of  the  district  court  in  such  cases  is  exclusive  of 
state  courts  ;  and  it  has  been  held  that  if  a  consul  is  sued  in  a  state 
court  and  he  neglects  to  plead  his  exemption  from  its  jurisdiction, 
it  is  not  a  waiver  of  his  privilege,  as  it  is  the  privilege  of  the  country 
which  he  represents  and  not  merely  a  personal  privilege,  and  the 
fact  may  be  shown  at  any  time.^ 

§  112.  In  bankruptcy. — The  district  courts  are  courts  of  bank- 
ruptcy, and  have  in  their  respective  districts  original  jurisdiction  in 
all  matters  and  proceedings  in  bankruptcy.^  As  we  have  at  present 
no  national  bankrupt  law  (the  Bankrupt  Act  of  1867  having  been 
repealed  in  1879),  it  is  hardly  necessary  to  give  this  subject  that 
consideration  which  its  importance  would  demand  if  there  was  a 
bankrupt  law  in  force. 

§  113.  Appeals  to  the  circuit  court. — Provision  is  made  for  appeals 
from  the  decisions  of  a  district  court  to  the  circuit  court  next  to  be 
held  in  the  district,  from  all  final  decrees  in  causes  of  equity  or  of 
admiralty  and  maritime  jurisdiction,  except  prize  causes,  where  the 
matter  in  dispute  exceeds  the  sum  or  value  of  fifty  dollars,  exclusive 
of  costs,  and  such  circuit  court  is  required  to  receive,  hear  and 
determine  such  appeal.^  Copies  of  the  proof  in  such  a  case,  and 
of  such  entries  arjd  papers  on  file  as  may  be  necessary  on  the 
hearing  of  the  appeal,  must  be  certified  up  to  the  appellate  court.^ 
Besides  this,  the  final  judgments  of  the  district  court  in  civil  actions, 
where  the  matter  in  dispute  exceeds  fifty  dollars  exclusive  of  costs, 
may  be  re-examined  and  reversed  or  affirmed  in  a  circuit  court 
holden  in  the  same  district,  upon  a  writ  of  error. ^ 

§  114.  Time  of  taking  appeals  to  the  circuit  courts. — It  is  pro- 
vided by  statute  that  no  judgment,  decree  or  order  of  the  district 
court  can  be  reviewed  by  a  circuit  court  on  writ  of  error  or  appeal, 
unless  the  writ  of  error  is  sued  out  or  the  appeal  taken  within  one 
year  after  the  entry  of  such  judgment,  decree  or  order,  except 
where  the  party  entitled  thereto  is  an  infant,  or  non  compos  mentis, 
or  imprisoned,  in  which  cases  the  appeal  may  be  taken  within  the 
time  aforesaid,  exclusive  of  the   term  of  such  disability.^     An  ap- 

Rev.  92 ;  1  Low.  (C.  C.)  77  :  Gettin<rs  ^  Rev.  Stat.  ?  563,  sub.  18. 

r.  Crawford,  Taney  (C.  C.)  1  ;  Rev.  =»  Rev.  Stat.  |  631. 

Stat.  §  629,  par.  1  ;  act  March  3,  1875,  *  Rev.  Stat.  |  632. 

§  1 .  *  Rev.  Stat.  ^  633. 

'  26  Pet.  41  ;  Davis  v.  Packard,  7  Pet.  «  Rev.  Stat.  |  635.      This   provision 

276.    See  also  St.  Lulie's  Hospital  t?.  would  appear  to  supersede  Admiralty 

Barkley,  3  Bhitch.  (C.  C.)  259.  Rule  45,  which  was  amended  May  6, 


PLEADING    AND    PRACTICE    IN    ADMIRALTY.  99 

peal  to  the  circuit  court  carries  up  the  whole  fund,  and  mere  tech- 
nical errors  in  the  decree  not  prejudicial  to  the  substantial  rights 
of  the  parties  will  be  disregarded.^ 

§  115.  What  must  be  certified  by  the  clerk  on  appeals  to  the 
circuit  courts. — It  is  provided  by  a  rule  of  practice  in  admiralty 
as  follows  : 

The  clerks  of  the  district  courts  shall  make  up  the  records  to  be 
transmitted  to  the  circuit  courts  on  appeals,  so  that  the  same  shall 
contain  the  following : 

1.  The  style  of  the  court. 

2.  The  names  of  the  parties,  setting  forth  the  original  parties, 
and  those  who  have  become  parties  before  the  appeal,  if  any  change 
has  taken  place. 

3.  If  bail  was  taken,  or  property  was  attached  or  arrested,  the 
process  of  the  arrest  or  attachment  and  service  thereof,  all  bail  and 
stipulations,  and  if  any  sale  has  been  made,  the  orders,  warrants 
and  reports  relating  thereto. 

4.  The  libel,  with  the  exhibits  annexed  thereto. 

5.  The  pleadings  of  the  defendants,  with  the  exhibits  annexed 
thereto. 

6.  The  testimony  on  the  part  of  the  libellant,  and  any  exhibits 
not  annexed  to  the  libel. 

7.  The  testimony  on  the  part  of  the  defendant,  and  any  exhibits 
not  annexed  to  his  pleadings. 

8.  Any  order  of  the  court  to  which  exception  was  made. 

9.  Any  report  of  an  assessor  or  assessors,  if  excepted  to,  with  the 
orders  of  the  court  respecting  the  same,  and  the  exceptions  to  the 
report.  If  the  report  was  not  excepted  to,  only  the  fact  that  a 
reference  was  made,  and  so  much  of  the  report  as  shows  what  re- 
sults were  arrived  at  by  the  assessor,  are  to  be  stated. 

10.  The  final  decree. 

11.  The  prayer  for  an  appeal,  and  the  action  of  the  district 
court  thereon ;  and  no  reasons  for  appeals  shall  be  filed  or  inserted 
in  the  transcript. 

The  following  shall  be  omitted  : 

1872,  and  required  appeals  in  admi-  or  order,  then  within  thirty  days  from 

ralty  causes  to   be  taken  while   the  the  rendering  of  the  decree.     Tor  a 

court  was  sitting,  or  within  such  period  construction   of    this   rule,    see    The 

as  might  be  designated  by  a  general  Neustra   Senora  de  Regla,  17  Wall, 

rule,   or   by   a   special   order   of  the  29  ;  Norton  v.  Rich,  3  Mas.  443. 
court,  or  in  case  there  was  no  such  rule         ^  The  Wanata,  95  U.  S.  600. 


100  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

1.  The  continuances. 

2.  All  motio#is,  rules  and  orders  not  excepted  to  which  arc 
merely  preparatory  for  trial. 

3.  The  commissions  to  take  depositions,  notices  therefor,  their 
captions,  and  certificates  of  their  being  sworn  to,  unless  some  ex- 
ception to  a  deposition  in  the  district  court  was  founded  on  some 
one  or  more  of  these;  in  which  case  so  much  of  either  of  them  as 
may  be  involved  in  the  exception  shall  be  set  out.  In  all  other 
cases  it  shall  be  enough  to  give  the  name  of  the  witnesses,  and  to 
copy  the  interrogatories  and  answers,  and  to  state  the  name  of  the 
commissioner,  and  the  place  where  and  the  date  when  the  deposi- 
tion was  sworn  to ;  and  in  copying  all  depositions  taken  on  inter- 
rogatories, the  answer  shall  be  inserted  immediately  following  the 
question.^ 

The  clerk  is  also  required  to  page  the  copy  of  the  record,  and 
make  an  index  of  the  same,  and  certify  at  the  end  thereof,  under  the 
seal  of  the  court,  that  it  is  a  transcript  of  the  record  of  the  district 
court  in  the  cause  named-  at  the  beginning  of  the  copy  made  up  as 
above  directed.^ 

§  116.  Appeals  to  the  Supreme  Court. — Appeals  from  the  district 
courts  to  the  Supreme  Court  in  prize  causes  are  required  to  be  taken 
within  thirty  days  after  the  rendering  of  the  decree,  unless  the 
court  previously  extends  the  time  for  cause  shown  in  the  particular 
case;^  and  they  are  governed  by  the  same  rules,  regulations  and 
restrictions  as  are  prescribed  by  law  in  cases  of  writs,  of  error. 
"Where  an  appeal  is  taken  by  both  parties,  a  transcript  of  the  record 
filed  by  either  in  the  Supreme  Court  may  be  used  on  both  appeals, 
and  both  appeals  may  be  heard  thereon  in  the  same  manner  as  if 
the  records  had  been  filed  by  the  two  appellants  in  both  cases.* 

1  Adm.  Rule  52.  '  Rev.  Stat.  §  1009.     See  also  The 

•^  Adm.    Rule   52.      See    also  The     Neustra,  17  Wall.  29. 

Grace    Girdler,    6    Wall.   441  ;  The        *  Rev.  Stat.  'H  1012,  1013. 

Yaughan,  14  Wall.  258. 


CHAPTER  VII. 

JUDICIAL    CIRCUITS    AND    ORGANIZATION    OF    THE    CIRCUIT    COURTS. 

§  117.  Judicial  circuits. — Se.c.  604.  The  judicial  districts  of  the 
United  States  are  divided  into  nine  circuits,  as  follows : 

First.  The  first  circuit  includes  the  districts  of  Rhode  Island, 
Massachusetts,  New  Hampshire  and  Maine. 

Second.  The  second  circuit  includes  the  districts  of  Vermont, 
Connecticut  and  New  York. 

Third.  The  third  circuit  includes  the  districts  of  Pennsylvania, 
New  Jersey  and  Delaware. 

Fourth.  The  fourth  circuit  includes  the  districts  of  Maryland, 
Virginia,  West  Virginia,  North  Carolina  and  South  Carolina. 

Fifth.  The  fifth  circuit  includes  the  districts  of  Georgia,  Florida, 
Alabama,  Mississippi,  Louisiana  and  Texas.^ 

Sixth.  The  sixth  circuit  includes  the  districts  of  Ohio,  Michigan, 
Kentucky  and  Tennessee. 

Seventh.  The  seventh  circuit  includes  the  districts  of  Indiana, 
Illinois  and  Wisconsin. 

Eighth.  The  eighth  circuit  includes  the  districts  of  ^Colorado, 
Nebraska,  Minnesota,  Iowa,  Missouri,  Kansas  and  Arkansas. 

Ninth.  The  ninth  circuit  includes  the  districts  of  California, 
Oregon  and  Nevada. 

Justices  allotted  to  circuits,  how  designated. — Sec.  G05. 
The  words  "  circuit  justice"  and  "justice  of  a  circuit,"  when  used  in 
this  title,  shall  be  understood  to  designate  the  justice  of  the  Supreme 
Court  wbo  is  allotted  to  any  circuit;  but  the  word  "judge,"  when 
applied  generally  to  any  circuit,  shall  be  understood  to  include  such 
justice. 

Allotment  of  the  justices  to  the  circuits. — Sec.  606.  The 
Chief  Justice  and  associate  justices  of  the  Supreme  Court  shall  be 
allotted  among  the  circuits  by  an  order  of  the  court,  and  a  new  allot- 
ment shall  be  made  whenever  it  becomes  necessary  or  convenient  by 
reason  of  the  alteration  of  any  circuit,  or  of  the  new  appointment 

^  As  amended  bv  act  of  .June  11,  ^  As  amended  by  act  of  June  26, 
1879,  ch.  18,  §  4,  21  Stat.  10.  1876,  ch.  147,  §  1,  19  Stat.  61. 


102  FEDERAL    PLEADING,    PRACTICE    AMD    PROCEDURE. 

of  a  Chief  Justice  or  associate  justice,  or  otherwise.  If  a  new 
allotment  becomes  necessary  at  any  other  time  than  during  a  term, 
it  shall  be  made  by  the  Chief  Justice,  and  shall  be  binding  until  the 
next  term  and  until  a  new  allotment  by  the  court. 

Circuit  judges. — Sec.  607.  For  each  circuit  there  shall  be  ap- 
pointed a  circuit  judge,  who  shall  have  the  same  power  and  juris- 
diction therein  as  the  justice  of  the  Supreme  Court  allotted  to  the 
circuit,  and  shall  be  entitled  to  receive  a  salary  at  the  rate  of  six 
thousand  dollars  a  year,  payable  quarterly  on  the  first  days  of 
January,  April,  July  and  October.  Every  circuit  judge  shall 
reside  within  his  circuit. 

Circuit  courts,  where  established. — Sec.  608.  Circuit  courts 
are  established  as  follows :  One  for  the  three  districts  of  Alabama, 
one  for  the  eastern  district  of  Arkansas,  one  for  the  southern  dis- 
trict of  Mississippi,  and  one  for  each  district  in  the  states  not 
herein  named ;  and  shall  be  called  the  circuit  courts  for  the  districts 
for  which  they  are  established. 

An  act  of  June  22,  1874,  ch.  401,  §  1,  18  Stat.  195,  provides  : 
That  there  shall  be,  and  is  hereby,  established  a  circuit  court  of 
the  United  States  for  the  middle  district  of  Alabama,  as  said  dis- 
trict is  now  constituted  by  law,  to  be  held  in  the  city  of  Montgomery, 
and  a  like  court  for  the  northern  district  of  Alabama,  as  said  dis- 
trict is  now  constituted  by  law,  to  be  held  in  the  city  of  Huntsville. 

An  act  of  June  22,  1874,  ch.  401,  §  2,  18  Stat.  195,  provides  : 
That  said  circuit  courts  shall  have  and  exercise,  within  their  respec- 
tive districts,  the  same  original  powers  and  jurisdiction  as  are  or 
may  be  conferred  by  law  upon  the  circuit  court  of  the  United 
States  for  the  southern  district  of  Alabama  at  Mobile,  and  shall 
have  and  exercise  appellate  and  revisory  jurisdiction  over  the  de- 
crees and  judgments  of  the  district  courts  of  the  United  States  for 
the  said  middle  and  northern  districts,  respectively,  under  the  laws 
of  the  United  States  regulating  the  jurisdiction,  powers  and  practice 
of  the  circuit  courts,  and  the  judges  thereof,  in  cases  removed  into 
said  courts  by  appeal  or  writ  of  error ;  and  said  courts,  and  the 
judges  thereof,  shall  have  the  general  superintendence  and  jurisdic- 
tion over  all  cases  and  questions  arising  in  said  district  courts, 
respectively,  under  the  act  approved  March  2,  1867,  entitled  "  An 
act  to  establish  a  uniform  system  of  bankruptcy  throughout  the 
United  States,"  as  provided  for  in  the  second  section  of  said  act. 


CIRCUIT    COURTS.  103 

An  act  of  June  22,  1874,  ch.  401,  §  5,  18  Stat.  195,  provides : 
That  the  circuit  court  of  the  United  States  held  at  Mobile,  Ala- 
bama, shall  be  designated  and  known  as  the  circuit  court  of  the 
United  States  for  the  southern  district  of  Alabama  ;  and  its  appel- 
late revisory  power,  upon  appeal  or  writ  of  error,  or  by  bill  or 
petition,  or  otherwise,  under  the  second  section  of  said  act,  entitled 
"  An  act  to  establish  a  uniform  system  of  bankruptcy  throughout 
the  United  States,"  is  hereby  restricted  to  judgments  and  decrees 
rendered  or  causes  and  questions  arising  in  the  district  court  of  the 
United  States  for  said  southern  district ;  and  that  the  fourth  section 
of  the  act  approved  March  3,  1873,  entitled  "An  act  relating  to 
the  circuit  and  district  courts  of  the  United  States  for  the  middle  and 
northern  districts  of  Alabama,"  be  and  the  same  is  hereby  repealed. 

Circuit  courts,  by  whom  to  be  held. — Sec.  609.  Circuit  courts 
shall  be  held  by  the  circuit  justice,  or  by  the  circuit  judge  of  the 
circuit,  or  by  the  district  judge  of  the  district  sitting  alone,  or  by 
any  two  of  the  said  judges  sitting  together. 

Justices  of  the  Supreme  Court  to  attend  once  in  two 
TEARS. — Sec.  610.  It  shall  be  the  duty  of  the  Chief  Justice,  and  of 
each  justice  of  the  Supreme  Court,  to  attend  at  least  one  term  of 
the  circuit  court  in  each  district  of  the  circuit  to  which  he  is  allotted 
during  every  period  of  two  years. 

Judges  may  sit  apart  and  try  cases.— aS'^c.  611.  Cases  may 
be  heard  and  tried  by  each  of  the  judges  holding  a  circuit  court 
sitting  apart  by  direction  of  the  presiding  justice  or  judge,  who 
shall  designate  the  business  to  be  done  by  each. 

Courts  held  at  the  same  time  in  different  distrcts. — Sec. 
612.  Circuit  courts  may  be  held  at  the  same  time  in  the  different 
districts  of  the  same  circuit. 

Criminal  terms  in  the  southern  district  of  New  York. — 
See.  611.  The  terms  of  the  circuit  court  for  the  southern  district 
of  New  York,  appointed  exclusively  for  the  trial  and  disposal  of 
criminal  business,  may  be  held  by  the  circuit  judge  of  the  second 
judicial  circuit  and  the  district  judges  for  the  southern  and  eastern 
districts  of  New  York,  or  any  one  of  said  three  judges;  and  at 
every  such  term  held  by  said  judge  of  said  eastern  district  he  shall 
receive  the  sum  of  three  hundred  dollars,  the  same  to  be  paid  in 
the  manner  now  prescribed  by  law  for  the  payment  of  the  expenses 
of  another  district  judge  while  holding  court  in  said  district. 


104         federal  pleading,  practice  and  procedure. 

When  district  judges  may  sit  to  review  their  own  opin- 
ions.— Sec.  614.  A  district  judge  sitting  in  a  circuit  court  shall 
not  give  a  vote  in  any  case  of  appeal  or  error  from  his  own  decis- 
ion, but  may  assign  the  reasons  for  such  decision  ;  pi'ovided,  that 
such  a  cause  may,  by  consent  of  parties,  be  heard  and  disposed  of 
by  him  when  holding  a  circuit  court  sitting  alone.  When  he 
holds  a  circuit  court  with  either  of  the  other  judges,  the  judgment 
or  decree  in  such  cases  shall  be  rendered  in  conformity  wnth  the 
opinion  of  the  presiding  justice  or  judge. 

When  suits  are  transferred  from  one  circuit  to  another. 
— Sec.  615.  When  it  appears  in  any  civil  suit  in  any  circuit  court 
that  all  of  the  judges  thereof  who  are  competent  by  law  to  try 
said  case  are  in  any  way  interested  therein,  or  have  been  of  coun- 
sel for  either  party,  or  are  so  related  or  connected  with  either 
party  as  to  render  it,  in  the  opinion  of  the  court,  improper  for 
them  to  sit  in  such  trial,  it  shall  be  the  duty  of  the  court,  on  the 
application  of  either  party,  to  cause  the  fact  to  be  entered  on  the 
records,  and  to  make  an  order  that  an  authenticated  copy  thereof, 
with  all  the  proceedings  in  the  case,  shall  be  forthwith  certified 
to  the  most  convenient  circuit  court  in  the  next  adjoining  state  or 
in  the  next  adjoining  circuit ;  and  said  court  shall,  upon  the  filing 
of  such  record  and  order  with  its  clerk,  take  cognizance  of  and  pro- 
ceed to  hear  and  determine  the  case  in  the  same  manner  as  if  it 
had  been  rightfully  and  originally  commenced  therein  ;  and  the 
proper  process  for  the  due  execution  of  the  judgment  or  decree 
rendered  in  the  cause  shall  run  into  and  may  be  executed  in  the 
district  where  such  judgment  or  decree  was  rendered,  and  also 
into  the  district  from  which  the  cause  was  removed. 

Cause  certified  back. — Sec.  616.  The  circuit  justice,  or  the 
circuit  judge  of  any  circuit,  may  order  any  civil  cause,  which  is 
certified  into  any  court  of  the  circuit  under  the  provisions  of  the 
preceding  section,  to  be  certified  back  to  the  court  whence  it  came; 
and  then  the  latter  shall  proceed  therein  as  if  the  cause  had 
not  been  certified  from  it ;  provided,  that  if,  for  any  reason,  it  shall 
be  improper  for  the  judges  of  such  court  to  try  the  cause  so  certi- 
fied back,  it  shall  be  tried  hy  some  other  judge  holding  such  court, 
pursuant  to  the  provisions  of  the  next  section. 

Justices  may  hold  courts  of  other  circuits  on  request. — 
Sec.  617.  Whenever  a  circuit  justice  deems  it  advisable,  on  account 


CIRCUIT   COURTS.  105 

of  his  disability  or  absence,  or  of  bis  having  been  of  counsel,  or 
being  interested  in  any  case  pending  in  the  circuit  court  for  any 
district  in  his  circuit,  or  of  the  accumulation  of  business  therein,  or 
for  any  other  cause,  that  said  court  shall  be  held  by  the  justice  of 
any  other  circuit,  he  may,  in  writing,  request  the  justice  of  any 
other  circuit  to  hold  the  same,  during  a  time  to  be  named  in  the 
request ;  and  such  request  shall  be  entered  upon  the  journal  of  the 
circuit  court  so  to  be  holden.  Thereupon  it  shall  be  lawful  for  the 
justice  so  requested  to  hold  such  court,  and  to  exercise  within  and 
for  said  district,  during  the  time  named  in  said  request,  all  the 
powers  of  the  justice  of  such  circuit. 

When  no  justice  is  allotted  to  a  circuit. — Sec.  618.  When- 
ever, by  reason  of  death  or  resignation,  no  justice  is  allotted  to  a 
circuit,  the  Chief  Justice  of  the  Supreme  Court  may  make  a  re- 
quest as  provided  in  the  preceding  section,  which  shall  have  the 
effect  in  like  manner  until  a  justice  is  allotted  to  such  circuit. 

Clerks. — Sec.  619.  As  amended  by  act  of  June  19,  1878,  ch. 
329,  §  1,  20  Stat.  204,  all  the  circuit  courts  of  the  United  States 
shall  have  the  appointment  of  their  own  clerks,  the  circuit  and  dis- 
trict judges  concurring;  and  in  case  of  a  disagreement  between  the 
judges,  the  appointment  shall  be  made  by  the  associate  justice  of 
the  Supreme  Court  allotted  to  such  circuit,  except  in  cases  other- 
wise specially  provided  for  by  law. 

An  act  of  June  22,  1874,  ch.  401,  §  3,  18  Stat.  195,  provides  : 
That  there  shall  be  appointed  for  each  of  said  circuit  courts  for 
said  middle  and  northern  districts  (of  Alabama),  by  the  circuit 
judge  of  the  circuit,  a  clerk  who  shall  take  the  oath  and  give  the 
bond  required  by  law  of  clerks  of  circuit  courts,  and  who  shall 
discharge  all  the  duties  and  be  entitled  to  all  the  fees  and  emolu- 
ments prescribed  by  law  for  clerks  of  circuit  courts ;  and  the 
United  States  marshals  for  said  middle  and  northern  districts  shall, 
respectively,  act  as  marshals  for  said  circuit  courts,  and  the  United 
States  district  attorney  for  said  districts  shall  discharge  the  duties 
of  district  attorney  in  said  circuit  courts  for  said  middle  and  north- 
ern districts. 

An  act  of  June  4,  1880,  ch.  120,  §  4,  21  Stat.  155,  provides: 
That  the  clerk  of  the  district  court  (for  the  district  of  Iowa)  shall 
be  the  clerk  of  the  circuit  court  at  all  the  places  where  the  same  is 
held  in  said  district,  except  at  Des  Moines. 


106  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

Clerks  in  Kentucky. — Sec.  620.  In  the  district  of  Kentucky, 
a  clerk  of  the  circuit  court  shall  be  appointed  at  each  place  of  hold- 
ing the  court,  in  the  same  manner  and  subject  to  the  same  duties 
and  responsibilities  which  are  or  may  be  provided  for  clerks  iu  in- 
dependent districts. 

Clerks  in  North  Carolina. — Sec.  621.  In  the  western  district 
of  North  Carolina  the  circuit  and  district  judges  shall  appoint  three 
clerks,  each  of  whom  shall  be  clerks  both  of  the  circuit  and  district 
courts  for  said  western  district  of  North  Carolina.  One  shall  re- 
side and  keep  his  office  at  Statcsville,  one  shall  reside  and  keep  bis 
office  at  Asheville,  and  the  third  shall  reside  and  keep  his  office  at 
Greensborough. 

Clerks  in  western  Virginia. — Sec.  622.  In  the  western  dis- 
trict of  Virginia  the  circuit  and  district  judges  shall  appoint  four 
clerks,  each  of  whom  shall  be  clerks  both  of  the  circuit  and  district 
courts  for  said  district.  One  of  these  clerks  shall  reside  and  keep 
his  office  at  Lynchburg,  another  shall  reside  and  keep  his  office  at 
Abingdon,  another  shall  reside  and  keep  his  office  at  Danville,  and 
the  fourth  shall  reside  and  keep  his  office  at  Harrisonburg,  in  said 
district. 

Clerks  in  Wisconsin. — Sec.  623.  In  the  western  district  of 
Wisconsin  the  circuit  and  district  judges  shall  appoint  two  clerks, 
each  of  whom  shall  be  clerks  both  of  the  circuit  and  district  courts 
for  said  district.  One  shall  reside  and  keep  his  office  at  Madison, 
and  the  other  shall  reside  and  keep  his  office  at  La  Crosse. 

Deputy  clerks. — Sec.  624.  One  or  more  deputies  of  any  clerk 
of  a  circuit  court  may  be  appointed  by  such  court,  on  the  appli- 
cation of  the  clerk,  and  may  be  removed  at  the  pleasure  of  judges 
authorized  to  make  the  appointment.  In  case  of  the  death  of  the 
clerks,  his  deputy  or  deputies  shall,  unless  removed,  continue  in 
office  and  perform  the  duties  of  the  clerk  in  his  name  until  a  clerk 
is  appointed  and  qualified;  and  for  the  defaults  or  misfeasances  in 
office  of  any  such  deputy,  whether  in  the  lifetime  of  the  clerk  or 
after  his  death,  the  clerk,  and  his  estate,  and  the  sureties  in  his 
official  bond  shall  be  liable  ;  and  his  executor  or  administrator  shall 
have  such  remedy  for  any  such  defaults  or  misfeasances  committed 
after  his  death  as  the  clerk  would  be  entitled  to  if  the  same  had 
occurred  in  his  lifetime. 

Deputy  clerks  in  Indiana. — Sec.  625.   In  the  district  of  In- 


CIRCUIT    COURTS.  107 

(liana  a  deputy  clerk  of  the  circuit  court  must  be  appointed  for  said 
court  held  at  New  Albany,  and  a  deputy  clerk  for  said  court  held 
at  Evansville,  who  shall  reside  and  keep  their  offices  at  said  places 
respectively.  Each  deputy  shall  keep  in  his  office  full  records  of 
all  actions  and  proceedings  in  the  circuit  court  held  at  the  same 
place,  and  shall  have  the  same  power  to  issue  all  process  from  the 
said  court  that  is  or  may  be  given  to  the  clerks  of  other  circuit 
courts  in  like  cases. 

Compensation  of  deputy  clerks. — Sec.  626.  The  compensa- 
tion of  deputies  of  clerks  of  the  circuit  courts  shall  be  paid  by  the 
clerks  respectively,  and  allowed  in  the  same  manner  that  other 
expenses  of  the  clerks'  offices  are  paid  and  allowed. 

Commissioners. — Sec.  627.  Each  circuit  court  may  appoint,  in 
different  parts  of  the  district  for  which  it  is  hehi,  so  many  discreet 
persons  as  it  may  deem  necessary,  who  shall  be  called  "  commis- 
sioners of  the  circuit  courts,"  and  shall  exercise  the  powers  which 
are  or  may  be  expressly  conferred  by  law  upon  commissioners  of 
circuit  courts.     (See  sections  2025,  2026.^) 

Marshals  not  to  be  commissioners. — Sec.  628.  No  marshal 
or  deputy  marshal  of  any  of  the  courts  of  the  United  States  shall 
hold  or  exercise  the  duties  of  commissioner  of  any  of  the  said 
courts. 

^  See  treatment  of  commissioners  of  the  circuit  courts,  i^ost,  cli.  xix. 


CHAPTER  VIII. 

JURISDICTION    OF    THE    CIRCUIT    COURTS. 

§118.  Jurisdiction  original  and  appellate. — The  circuit  courts  of 
tlie  United  States  have  both  original  and  appellate  jurisdiction. 
The  act  of  Congress  of  ^larch  8,  1875,  prescribes  the  original 
jurisdiction  of  circuit  courts  as  follows :  -"  The  circuit  courts  of 
the  United  States  shall  have  original  cognizance,  concurrent  with 
the  courts  of  the  several  states,  of  all  suits  of  a  civil  nature  at 
common  law  or  in  equity,  where  the  matter  in  dispute  exceeds, 
exclusive  of  costs,  the  sum  or  value  of  five  hundred  dollars,  and 
arising  under  the  Constitution  or  laws  of  the  United  States,  or 
treaties  made  or  which  shall  be  made  under  their  authority,  or  in 
which  the  United  States  are  plaintiffs  or  petitioners,  or  in  which 
there  shall  be  a  controversy,  between  citizens  of  different  states,  or 
a  controversy  between  citizens  of  the  same  state  claiming  lands 
under  grants  of  different  states,  or  a  controversy  between  citizens 
of  a  state  and  foreign  states,  citizens  or  subjects;  and  shall  have 
exclusive  cognizance  of  all  crimes  and  offences  cognizable  under 
the  authority  of  the  United  States,  except  as  otherwise  provided  by 
law,  and  concurrent  jurisdiction  with  the  district  courts  of  the 
crimes  and  offences  cognizable  therein.  But  no  person  shall  be 
arrested  in  one  district  for  trial  in  another  in  any  civil  action  before 
a  circuit  or  district  court.  And  no  civil  suits  shall  be  brought 
before  either  of  said  courts  against  any  person  by  any  original  pro- 
cess or  proceeding  in  any  other  district  than  that  whereof  he  is  an 
inhabitant,  or  in  which  he  shall  be  found  at  the  time  of  serving 
such  process  or  commencing  such  proceedings,  except  as  herein- 
after provided ;  nor  shall  any  circuit  or  district  court  have  cogni- 
zance of  any  suit  founded  on  contract  in  favor  of  an  assignee,  unless 
suit  might  have  been  prosecuted  in  such  court,  to  recover  thereon, 
if  no  assignment  had  been  made,  except  in  cases  of  promissory  notes 
negotiable  by  the  law  merchant  and  bills  of  exchange.  And  the 
circuit  courts  shall  also  have  appellate  jurisdiction  from  the  district 
courts  under  the  regulations  and  restrictions  prescribed  by  law."^ 

^  Act  March  3,  1875,  18  Stat,  at  Large,  ch.  137,  H,  18  Stat,  at  Large  470. 


CIRCUIT   COURTS.  109 

The  act  of  1789'  provided  as  follows  :  "  The  circuit  courts  shall 
have  original  cognizance,  concurrent  with  the  courts  of  the  several 
states,  of  all  suits  of  a  civil  nature  at  common  law  or  in  equity  where 
the  matter  in  dispute  exceeds,  exclusive  of  costs,  the  sum  or  value 
of  five  hundred  dollars,  and  the  United  States  are  plaintiffs  or  peti- 
tioners ;  or  an  alien  is  B,  party,  or  the  suit  is  between  a  citizen  of 
the  state  where  the  suit  is  brought  and  a  citizen  of  another  state  ; 
and  shall  have  exclusive  cognizance  of  all  crimes  and  offences  cog- 
nizable, under  the  authority  of  the  laws  of  the  United  States, 
except  where  it  is  otherwise  provided,  or  the  laws  of  the  United 
States  shall  otherwise  direct,  and  concurrent  jurisdiction  with  the 
district  courts  of  the  crimes  and  offences  cognizable  therein.  But 
no  person  shall  be  arrested  in  one  district  for  trial  in  another,  in 
any  civil  action  before  a  circuit  or  district  court.  And  no  civil  suit 
shall  be  brought  before  either  of  said  courts  against  an  inhabitant 
of  the  United  States  by  any  original  process  in  any  other  district 
than  that  whereof  he  is  an  inhabitant,  or  in  which  he  shall  be  found 
at  the  time  of  serving  the  writ ;  nor  shall  any  circuit  or  district 
court  have  cognizance  of  any  suit  to  recover  the  contents  of  any 
promissory  note  or  other  chose  in  action,  in  favor  of  an  assignee, 
unless  a  suit  might  have  been  prosecuted  in  such  court  to  recover 
the  said  contents  if  no  assignment  had  been  made,  except  in  case  of 
foreign  bills  of  exchange.  And  the  circuit  courts  shall  also  have 
appellate  jurisdiction  from  the  district  court  under  the  regulations 
and  restrictions  hereinafter  provided." 

As  the  provisions  of  this  act  were  in  operation  nearly  a  century, 
there  were  many  decisions  of  the  federal  courts  construing  their 
meaning,  and  these  decisions  will  guide  us  in  the  interpretation  of 
the  present  statute  substituted  therefor. 

§  119.  Suits  of  a  civil  nature  at  common  law  or  in  equity. — The 
language  of  the  statutes,  "  all  suits  of  a  civil  nature  at  common  law 
or  in  equity,"  has  been  held  to  embrace  all  suits  at  law  on  contracts 
and  for  torts. ^ 

The  phraseology  of  the  statute  relating  to  the  removal  of  causes 
from  the  state  to  the  circuit  courts  is  similar  to  that  under  consid- 
eration, and  hence  any  decision  construing  the  statute  in  either 
case  is  applicable  to  the  other.      This  provision   has  been   held  to 

^  1  Stat,  at  Lar^e  78.  449  ;  Fouvergne  v.  New  Orleans,  IS 

^  Kohl  V.  United  States,  91   U.  S.     IIow.  470. 
8G7  :    Weston  v.  Charleston,  2   Pet. 


110     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

cover  suits  by  attacliment/  and  suits  in  replevin  and  in  ejectment. - 
And  it  embraces  a  suit  in  equity,  to  reform  an  insurance  policy;^ 
to  annul  a  will;*  and  special  statutory  proceedings  to  confirm  a  tax 
title.^  Also  suits  involving  a  construction  of  a  bankrupt  act,^  and 
to  restrain  or  stay  execution  of  a  judgment  of  a  state  court.^ 

In  Wheeler  V.  Bates*  it  was  held  that  the  circuit  court  of  the 
United  States  had  jurisdiction  of  an  action  of  forcible  entry  and 
detainer  under  the  statutes  of  Illinois,  as  a  "suit  of  a  civil  nature" 
within  the  meaning  of  the  act  of  Congress  providing  for  the  origi- 
nal jurisdiction  of  the  circuit  courts  in  "all  suits  of  a  civil  nature 
at  common  law  or  in  equity."^  So  it  has  cognizance  of  an  action 
under  a  statute  of  a  state  authorizing  the  recovery  of  money  lost  at 
gaming  or  horse-racing  ;  ^'^  and  of  a  suit  between  diiferent  states  for  a 
partition  of  lands  under  the  statutes  of  a  state;"  and  of  a  suit 
against  a  sheriff  for  an  escape,  as  well  as  for  other  neglects  and 
misdemeanors.'^ 

The  term  "at  common  law  or  in  equity,"  as  used  in  the  statute, 
does  not  limit  the  jurisdiction  merely  to  suits  which  the  old  com- 
mon law  recognizes  as  among  its  fixed  and  settled  proceedings,  but 
it  embraces  all  suits  in  which  legal  rights  are  to  be  ascertained  and 
determined,  as  well  as  rights  in  equity.'^ 

The  pleading,  practice  and  mode  of  procedure  in  suits  at  law  is 
governed  by  the  requirements  of  the  statutes  of  the  states,  and  by 
the  local  laws,  as  expounded  by  the  decisions  of  the  state  courts,  as 
we  shall  hereafter  notice  more  fully  ;  and  if  the  statutes  authorize  the 
commencement  of  a  suit  to  determine  a  legal  right,  a  circuit  court  can 
take  jurisdiction  of  it  as  a  suit  at  common  law,  although  it  may  not 
be  strictly  a  procedure  known  or  authorized  by  the  common  law.'* 

^  Barney  v.  Globe  Bank,  5  Blatch.         ^  6  Biss.  88. 
107.  ®  See  also  Clark  v.  Smith,  13  Pet. 

^Beecher  v.   Gillett,    1   Dill.    308;  195;    Lorman    v.    Clark,   2    McLean 

Dennistoun  v.  Draper,  5  Blatch.  336  ;  (C.  C.)  568. 

Gibbs  w.  Usher,  1  Holmes  348;  Li  re        '"  Grant  i?.  Hamilton,  3  McLean  (C. 

Turner,    3   Wall.   Jr.   260;  Torry  v.  C.)  100.    See  also  Fritch  v.  Crei^rhton, 

Beardsley,    4   Wash.    242;    Allin   v.  24    How.    159;    Gibbs    v.    Usher,    1 

Robinson,  1  Dill.  119.  Holmes  348. 

3  Charter  Oak  Co.  v.  Star  Ins.  Co.,  6         "  Ex  parte  Biddle,  2  Mason  472. 
Blatch.  208.  '^  Mewster  v.  Spaulding,  6  McLean 

*  Gaines  v.  Fuentes,  92  U.  S.  10.  24. 

5  Parker  v.  Overman,  18  How.  137.  '''  Kohl  v.  U.  S.,  91  U.  S.  367 ;  U.  S. 

«  Connor    v.   Scott,  3   Cent.   L.  J.  v.  Block,  3  Biss.  208. 
305 ;  Dill.  242.  "  United   States  v.  Block,   3   Biss. 

'  Watson  V.  Bondurant,   2  Woods.  208  ;   Railway  Company  v.  Whitton, 

(C.  C.)  166.  13  Wall.  270. 


CIRCUIT   COURTS.  Ill 

If  a  right  to  sue  exists  at  common  law  or  by  statute,  the  statutes 
of  a  state  cannot  limit  the  right  of  recovery  to  a  state  court,  but  it 
may  in  such  cases  be  enforced  in  the  proper  federal  court  having 
jurisdiction  under  the  provisions  of  the  foregoing  section.^ 

In  equity  suits,  the  jurisdiction,  practice  and  procedure  is  co- 
extensive with  and  governed  by  the  principles,  rules  and  usages  of 
courts  of  equity  in  England,  and  cannot  be  regulated  or  controlled 
by  the  jurisprudence  of  the  state  within  which  the  suit  is  brought  ;^ 
and  although  circuit  courts,  as  courts  of  equity,  may  make  rules 
and  regulations  for  the  practice,  proceedings  and  process,  mesne 
and  final,  in  their  respective  circuits  they  cannot  be  inconsistent 
with  the  general  principles  or  usages  of  the  High  Court  of  Chancery 
in  England,  or  with  the  rules  prescribed  by  the  Supreme  Court  of 
the  United  States.^ 

The  fact  that  there  may  be  no  state  courts  of  equity,  or  statu- 
tory provisions  providing  for  them,  does  not  affect  the  right  of  the 
proper  federal  courts  to  take  cognizance  of  equity  suits  ;  and  they 
are  bound  to  proceed  in  such  cases  according  to  the  principles  and 
usages  of  courts  of  equity  as  distinguished  from  courts  of  law.* 
But  we  will  hereafter  more  particularly  point  out  the  practice  and 
procedure  in  this  court,  in  suits  at  law  and  in  equity. 

§  120.  Injunctions  of  state  courts  prohibited. — It  may  here  be 
observed  that  writs  of  injunction  by  the  courts  of  the  United  States, 
to  stay  proceedings  in  the  state  courts,  are  expressly  prohibited  by 
the  Revised  Statutes,  except  in  cases  authorized  by  any  law  relating 
to  proceedings  in  bankruptcy.^  As  the  bankrupt  law,  then  in  ex- 
istence, has  since  been  repealed,  the  exception  has  no  virtue,  but 
the  general  provision  remains  in  full  force  and  effect.^ 

§  121.  The  value  of  the  matter  in  dispute. — In  construing  the 
provisions  of  the  statute  relating  to  the  value  of  the  matter  in  dis- 

1  Parsons  i\  Lyman,  5  Blatchf.  170;  Lafayette,  12  Pet.  472;  The  Philadel- 
Livingston  v.  Jefferson,  1  Brock.  203.     phia,  etc.,  R.  Co.  v.  Stimpson,  14  Pet. 

2  Rev.  Stat.  ^913;  Equity  Rule  90;     448. 

State  of  Pennsylvania  v.  Wheeling;,         *  Gaines  v.  Relf,  15  Pet.  9;  Living- 

etc,  Br.  Co.,  18  IIow.  421;  Robinson  ston  v.  Story,  9  Pet.    632;   Ex  parte 

V.   Campbell.  3  Wh.  212;    Dodge  v.  Whitney,  13  Pet.  404. 
Wolsey,  18  How.  331 ;  Barber  v.  Bar-        ^  Rev.  Stat.  §  720. 
ber,  21  How.  582 ;  Livingston  v.  Sto-        ^  The  Bankrupt  Act  of  1867  was  re- 

ry,  9  Pet.  632;    Payne   v.    Hook,  7  pealed  by  an  act  of  June   7,  1878, 

Wall.    425 :    Fletcher    v.    Morey,    2  which   took   effect   September,   1878, 

Story  555.  except  as  to  matters  then  pending  in 

=*  Bank  of  U.   S.  v.  White,  8  Pet.  court:  Acts  of  45th  Cong.,  19  Stat. 
262  ;    Ex  parte  Poultn^  v.   City  of 


112  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

pute,  it  has  been  held  that,  in  an  action  upon  a  money  demand,  the 
value  of  the  matter  in  controversy  is  the  debt  claimed,  as  stated  in 
the  body  of  the  declaration,  and  not  merely  the  damages  alleged  in 
the  statement,  or  the  amount  claimed  in  the  prayer  for  judgment  at 
its  conclusion.^  The  court  will  look  to  the  amount  claimed  in  the 
body  of  the  complaint,  and  will  not  be  governed  by  the  amount  for 
which  judgment  is  prayed  ;  and  the  amount  of  all  that  is  claimed  in 
all  the  counts  of  the  declaration  upon  all  the  causes  of  action  which 
are  properly  joined  will  be  considered  in  determining  the  amount 
in  controversy.^ 

But  where  a  bill  was  filed  jointly  by  several  complainants  for 
an  injunction  to  restrain  the  collection  of  taxes  on  the  property  of 
the  several  complainants,  levied  for  the  purpose  of  constructing  a 
railroad,  and  the  amount  severally  levied  upon  their  property  was 
less  than  five  hundred  dollars,  but  collectively  it  exceeded  that  sum, 
the  court  held  that  as  to  each  of  the  complainants  it  was  necessary 
that  the  amount  in  dispute  should  exceed  five  hundred  dollars ;  and 
that  although  they  might  join  in  the  proceeding  to  injoin  the  col- 
lection of  the  tax,  the  interest  of  each  was  several ;  and  that  when 
it  became  necessary  to  aggregate  the  tax  the  several  complainants 
were  required  to  pay,  to  make  the  amount  of  five  hundred  dollars,  it 
was  insufficient  to  confer  jurisdiction.^  The  matter  in  dispute  must 
exceed  five  hundred  dollars,  and  it  is  not  sufficient  that  it  equal 
that  amount.  Hence  it  is  necessary  to  aver,  in  the  body  of  the 
declaration,  facts  showing  that  it  exceeds  that  sum.* 

It  is  sufficient,  however,  if  the  amount  in  dispute  exceeds  five 
hundred  dollars -with  interest  due  on  the  obligation  sued  on.'' 

The  subject-matter  of  the  suit  must  be  something  of  a  pecuniary 
value,  and  susceptible  of  a  pecuniary  estimate  ;  and  this  necessarily 
excludes  all  controversies  of  a  civil  character  relating  to  the  cus- 

1  Lee  V.  Watson,  1  Wall.  337.  v.  McDowell,  4  Cr.  316;  Postmaster 

^  Judson  V.  Macon  County,  2  Dill.  General  v.  Cross,  4  Wash.  (C.  C.)  326; 

213.  Hartshorn  v.  Wright,  1   Pet.  (C.  C.) 

3  King  t).  Wilson,  1  Dill.  555;  Adams  64;  King  v.  Wilson,  1   Dill.  (C.  C.) 

».  Board  of  Commissioners,  McMahon  555;  Walker  i?.  The  United  States,  4 

235;  Bank  of  U.  S.  v.  Moss,  6  How.  Wall.  163. 
31.  ^  Bank  v.  Daniel,  12  Pet.  32.     The 

*  Lee  V.  Watson,  1  Wail.  337;  Gor-  same  doctrine  is  held  in  cases  of  the 

don  V.  Longest,  16  Pet.  97;  Kanouse  removal    of    causes    from    the    state 

V.   Martin,  15   Ilow.  198;   I3ennett  v.  courts:    see    McGinnity    v.  White,   3 

Butterworth,  8  How.  124;  Payton  v.  Dill.  350;  Merrill  v.  Petty,  16  Wall. 

Robertson,  9  Wh.  527;  United  States  338. 


CIRCUIT   COURTS.  113 

tody  of  children,  and  those  involving  the  right  of  personal  freedom, 
as  these  matters  are  not  susceptible  of  a  pecuniary  valuation.^ 

The  requisite  value  of  the  matter  in  controversy  is  a  jurisdic- 
tional fact,  and  it  must,  necessarily,  be  averred  in  the  declaration 
or  bill.  There  are  no  presumptions  in  favor  of  the  jurisdiction  of 
the  federal  courts,  as  they  are  specially  constituted  with  jurisdic- 
tion in  certain  cases  ;  and  the  facts  upon  which  it  rests  must  appear 
in  some  form  in  the  record  of  all  suits  prosecuted  before  them. 
They  have  no  jurisdiction  except  such  as  the  statute  confers;^  and 
as  the  jurisdiction  of  the  court  depends  upon  a  statute,  if  the 
statute  is  repealed,  this  takes  away  the  jurisdiction  of  the  court 
from  the  time  of  the  repeal,  even  though  there  may  be  suits  pend- 
ing, unless  there  is  a  reservation  of  such  suits.^ 

§  122.  Suits  arising  under  the  Constitution  or  laws  of  the  United 
States. — One  of  the  grounds  of  jurisdiction  of  the  circuit  courts  is 
that  the  matter  in  dispute  arises  "  under  the  Constitution  or  laws 
of  the  United  States,  or  treaties  made  .  .  .  under  their  authority." 
If  the  question  presented  to  the  court  is  whether  a  state  law  is  in 
conflict  with  any  provision  of  the  federal  Constitution,  this  would 
evidently  be  within  the  provisions  of  the  act,  and  give  the  circuit 
courts  original  jurisdiction.  In  such  a  case  a  correct  decision 
would  depend  upon  a  proper  construction  of  the  Constitution,  and 
this  would  give  the  proper  circuit  court  jurisdiction.*  If  a  state 
law  is  in  conflict  with  the  Constitution  of  the  United  States,  and  a 
state  officer  is  about  to  execute  it,  this  would  be  a  proper  case  for 
the  exercise  of  the  original  jurisdiction  of  a  circuit  court  to  restrain 
him.  And  the  court  may  proceed  in  such  a  case  to  a  decree  against 
an  officer  of  the  state  in  all  respects  as  if  the  state  were  a  party  to 
the  record.^ 


>  Lee  V.   Lee,  8  Pet.  44;  Barry  v.  Blatchf.  84;    Dred  Scott  v.  Sanford.- 

Mercien,   5    How.    103;    Sparrow    v.  19  How.  393. 

Strong,    3  Wall.  97;    Gaines   i'.  Fu-  ^Insurance  Co.  r.  Ritchie,  5  Wall, 

entes,  92   U.   S.    10;    Pratt  v.   Fitz-  541;  Norris  v.  Crocker,  13  How.  429. 

hugh,  1  Black.  271;  DeKraft  v.  Bar-  *  Cohens  v.  Virginia,  6   Wh.  264: 

ney,   2   Id.  704;    Green  v.   U.  S.,   9  Owings  v.  Norwood,   5  Cr.  344;  Os- 

Wall.  655;  Bison   v.  Cribbs,  1   Dill,  borne  v.  Bank  of  U.  S.,  9  Wh.  738. 

181.  See  also  Cook  v.  Moffatt,  5  How.  295 ; 

■'  Sheldon    v.    Sill,    8    How.    441  ;  Abb.  Nat.  Dig.  Lit.  Const.  Law. 

United    States    v.   Eckford,    6  Wall.  «  Osborne  v.  Bank  of  U.  Si,  9  Wh. 

484;    Carey  v.  Curtis,  3   How.  236  ;  738  ;  Dodge  v.  Wolsey,  18  How.  331  ; 

Wisconsin    v.    Duluth,    2   Dill.   206  ;  State  Bank  v.  Knoop,  16  How.  369  ; 

Hubbard     v.    Northern     R.    Co.,    3  Jefferson    Bank  v.   Skelly,    1    Black. 
8 


114  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

§  123.  Controversy  bet-weeir  citizens  of  different  states. — If  the 
suit  and  the  amount  in  dispute  is  Avithin  the  provisions  of  the  stat- 
ute, and  it  appears  from  the  declaration  or  bill  that  the  "  contro- 
versy is  between  citizens  of  different  states,"  the  circuit  court  has 
original  jurisdictioii. 

Under  similar  provisions  of  the  Judiciary  Act  (1789),  it  was  held 
that  the  statute  meant  that  each  distinct  interest  should  be  repre- 
sented by  parties,  all  of  whom  might  sue  and  be  sued  in  the  federal 
courts ;  and  that  where  the  interest  of  either  party  was  joint,  each 
of  the  persons  interested  must  have  the  requisite  citizenship  to  sue 
or  be  sued  in  those  courts,  and  that  the  circuit  courts  would  have 
no  jurisdiction  if  some  of  the  defendants  Avere  citizens  of  the  same 
state  W'ith  the  plaintiffs.^ 

And  under  a  subsequent  act,  which  provided  "  that  where,  in 
any  suit  at  law  or  in  equity  commenced  in  any  court  of  the  United 
States,  there  shall  be  several  defendants,  any  one  or  more  of  whom 
shall  not  be  inhabitants  of  or  found  within  the  district  where  suit 
is  brought,  or  shall  not -voluntarily  appear  thereto,  it  shall  be  law- 
ful for  the  court  to  entertain  jurisdiction  and  proceed  to  the  trial 
and  adjudication  of  such  suit  betw'een  the  parties  who  may  be 
properly  before  it;  but  the  judgment  or  decree  rendered  therein 
shall  not  conclude  or  prejudice  other  parties  not  regularly  served 
with  process,  or  not  voluntarily  appearing  to  answer;  and  the  non- 
joinder of  parties  who  are  not  so  inhabitants,  or  found  within  the  dis- 
trict, shall  constitute  no  matter  of  abatement  or  other  objection  to 
said  suit,"  it  was  held  that  the  joinder  of  a  defendant,  who  was  a  cit- 
izen of  the  same  state  with  the  plaintiff,  and  who  was  duly  served 
with  original  process,  with  others  who  were  not  citizens  of  the 
same  state,  would  oust  the  court  of  jurisdiction.^ 

436;  Ohio  L.  and  F.  Co.  v.  Debold,  18  tutions.  See  also  Livingstone  t'.  Moore, 

How.  380 ;  Davis  v.  Grey,  16  Wall.  1  Bald.  424. 

203.  >  Strawbridge  v.  Curtis,  3  Cr.  267  ; 

In  Bennett  v.  Boggs,  1    Bald.  60,  Ward  v.  Arredondo,  1  Paine  (C.  C.) 

the  question  of  the  constitutionality  410.     See  also   Commercial   Bank  v. 

of  a  state  law  was  the  matter  in  con-  Slocomb,  14   Pet.    60;    Coal   Co.    v. 

troversy.     It  was  held  that  the  legis-  Blatchford,  11  Wall.  172. 

lature  of  a  state  had  paramount  au-  -  Act  of  February  28,  1839,  5  Stat, 

thority  to  legislate   and  regulate  its  at  Large  321  ;   Ketchum  v.  Farmers', 

lisheries  unless  restrained  by  its  con-  etc.,  Co.,  4  McLean  1.     See  also  Coal 

stitution.    and    that   a   common    law  Co.  f.  Blatchford,  1 1  Wall.  172 ;  Case 

right  of  fishery  may  be  taken  away  of  the  Sewing  Machine  Co.,  18  Wall, 

by  legislative  prohibition,  as  it  is  not  553  ;  Doremus  v.  Bennett,  4  McLean 

fk   right   founded    upon   contract,    or  224. 
secured  by  the  federal  or  state  consti- 


CIRCUIT   COURTS.  115 

One  of  the  provisions  for  jurisdiction  under  the  act  of  1875  is 
that  there  "be  a  controversy  between  citizens  of  different  states." 
In  construing  this  language,  the  Supreme  Court  has  held  that,  if 
there  is  a  controversy  between  citizens  of  diiferent  states,  about 
which  the  suit  is  brought,  it  is  immaterial  as  to  the  position  of  the 
parties  on  the  record  or  in  the  pleadings  as  plaintiffs  or  defendants  ; 
and  that  in  determining  the  question  of  jurisdiction  the  court  might 
"ascertain  the  real  matter  in  dispute  and  arrange  the  parties  on 
one  side  or  other  of  that  dispute ;  and  that  if  in  such  arrangement 
it  appeared  that  those  on  one  side  were  all  citizens  of  different 
states  from  those  on  the  other,  jurisdiction  might  be  entertained 
and  the  cause  proceeded  with."^ 

§  124.  Who  are  citizens. — A  citizen,  in  the  sense  of  the  statute, 
is  one  who  resides  in,  and  is  an  inhabitant  of,  the  state.  It  is 
evident  that  he  need  not  possess  the  qualifications  which  would 
enable  him  to  exercise  the  election  franchise  or  hold  real  estate. 
Those  who  have  resided  in  and  been  inhabitants  and  citizens  of 
one  state,  within  the  meaning  of  the  statute,  may  remove  to  another 
state  to  remain  either  temporarily  or  permanently,  and  various 
matters  connected  therewith  may  properly  be  considered  in  deter- 
mining the  question  of  citizenship.  It  has  been  held  that,  on  the 
removal  of  a  citizen  from  one  state  to  another,  citizenship  may  de- 
pend upon  his  intentions.  The  exercise  of  the  right  of  suffrage  in 
such  a  case  in  the  state  where  he  resides  would  perhaps  ordinarily 
be  conclusive  upon  the  subject ;  but  even  where  the  right  of  suffrage 
has  not  been  exercised,  the  acquiring  of  the  right  so  to  do,  accom- 
panied by  such  acts  as  indicate  a  permanent  location,  would  be 
quite  satisfactory  on  this  question.  And  where  an  individual  who 
is  a  citizen  of  the  United  States  has  resided  in  a  state  for  a  con- 
siderable length  of  time,  during  which  he  has  there  been  engaged 
in  business,  he  may  well  be  presumed  to  be  a  citizen  of  such  state, 
unless  circumstances  appear  to  the  contrary.^ 

^  The  Pacific  Railroad  v.  Ketchum,  Gardner'  v.  Sharp,  4  Wash.  609  ;    De 

101  U.  S.  290.    The  same  doctrine  was  AVolf  v.  Rabaud,  1  Pet.  476  ;  Shelton 

maintained    in   Removal   Cases,    100  v.  Tiffin,    6  How.   163.      There  was, 

U.  S.  457,  the  latter  construing  the  however,  an  exception  to  this  rule  in 

same  language  in  the  second  section  case  of  negroes  of  the  African  race, 

of  the  same  act,  relating  to  the  re-  before  slavery  in   this   country   was 

moval  of  causes.  abolished.    In  1856  the  Supreme  Court 

^  Prentiss  v.  Barton,  1  Brock.  389  ;  of  the  United  States  determined  that 

Cooper   V.  Galbraith,  3  Wash.    546 ;  a   free    negro    of    the   African    race 


116  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

Under  the  Judiciary  Act  of  1789  it  was  held  that  a  citizen  of  the 
District  of  Columbia  was  not  a  citizen  of  a  state  within  the  mean- 
ing of  that  act,  and  that  he  could  not  maintain  an  action  against  a 
citizen  of  a  state  in  the  circuit  court. ^  Nor  could  a  citizen  of  a 
territory,  under  that  act,  sue  a  citizen  of  a  state  in  the  federal 
courts,  when  the  jurisdiction  depended  upon  citizenship  of  the 
parties  ;  as  a  citizen  of  a  territory  is  not  a  citizen  of  a  state  within 
the  meaning  of  the  statute."  The  circuit  courts  have  no  juris- 
diction of  a  case,  either  at  law  or  in  equity,  in  which  the  plaintiff 
and  defendant  are  citizens  of  the  same  state,  as  neither  the  judi- 
ciary acts  of  Congress  nor  the  Constitution  of  the  United  States 
confers  jurisdiction  in  such  cases. ^ 

§  125.  Parties,  merely  nominal  or  formal. — If  the  real  controversy 
is  between  citizens  of  different  states,  the  fact  that  there  are  merely 
formal  or  nominal  parties  to  it,  who  have  not  the  requisite  citizen- 
ship, does  not  affect  the  jurisdiction  of  the  court.  "  Where  the 
real  and  only  controversy  is  between  citizens  of  diff'erent  states,  or 
an  alien  and  a  citizen,  and  a  plaintiff"  by  some  positive  rule  of  law 
is  compelled  to  use  the  name  of  another  to  perform  some  minis- 
terial act,  who  has  not  and  never  had  any  interest  in  or  control  over 
it,  the  courts  of  the  United  States  will  not  consider  any  others  as 
parties  to  the  suit  than  the  persons  between  whom  the  real  contro- 
versy and  litigation  before  them  exists."*    So  where  certain  parties 

whose  ancestors  were  brought  to  this  alienage  of  the   defendant:  Prentiss 

counti-y  and  sold  as  slaves  could  not  v.  Brennan,  2  Blatch.  (C.  C.)  162. 
be  a  citizen  within  the  meaning  of  the         ^  North     Carolina     v.     Dewey,     1 

federal  judiciary  acts:  Dred  Scott  v.  Hughes  133 -,  Galew.  Babcock,4'W'ash. 

Sanford,  19  How.  393.  .  (C.  C.)  199 ;  Osborn  v.  U.  S.  Bank,  9 

1  Hepburn  v.  Ellzey,  2  Cr.  445;  Bar-  Wh.  738  ;  Cohen  v.  Virginia,  6  Wh. 

noy   V.  Baltimore  City,    6  Wall.  280.  264 ;  Martin  v.  Hunter,  1  Wh.  237. 

But    see    Sere   v.  Pitot,  6    Cr.   332 ;  If  property  of  a  state  is  in  the  hand-s 

Eailroad  Co.  v.  Harris,  7  Wall.  574.  of  an  officer  or  agent  as  trustee,  and 

^  New  Orleans  v.  Winter,  1  Pet.  91.  the  officer  or  agent  is  within  the  juris- 

Where  the   plaintiff  was   a  native  of  diction  of  the  court,  it  may  take  juris- 

New  York,  but  had  resided  and  done  diction  of  the  suit  without  requiring 

business  in   Canada  for  thirty   years,  the    state    to  be   a  party:   Swasey  i'. 

and  resided  there  at  the  time  of  bring-  North  Carolina  R.  Co.,  1  Hughes  17  ; 

ing   this  suit  and   had  taken  an  oath  Osborne  v.  U.  S.  Bank,  9  Wh.  738. 
of  allegiance  to  the  queen  of  Great        *  Opinion  of  Mr.  Justice  Clifford  in 

Britain,  and  the  defendant  was  a  citi-  Walden   v.   Skinner,   101    U.  S.  577. 

zen  of  Canada,  it  was  held  that  the  See  also  Mr.  Justice  Miller  in  Ara- 

circuit  court  of  New  York   had   no  pahoe  Co.  v.  Kansas  Pacific  R.  Co., 

jurisdiction  of  the  case,  as  the  plain-  4  Dill.  277  ;    Harvey  v.    The  Hlinois 

tiff  was  not   a   citizen   of  the   state.  Mid.  R.  Co.,  7  Biss.  103  ;  Davis  v.  Grey. 

This  suit  was,  of  course,  based  upon  16  Wall.  203.    See  also  Weed  Sewing 

the  citizenship  of  the  plaintiff  and  the  Machine  Co.  v.  Wicks,  3  Dill.  261. 


CIRCUIT    COURTS.  117 

had  only  a  nominal  interest,  and  they  resided  beyond  the  jurisdic- 
tion of  the  court,  it  was  held  error  to  dismiss  the  bill  on  the 
ground  that  they  were  not  made  parties,  where  all  the  parties  who 
had  a  beneficial  interest  were  in  court.  The  court,  in  such  a 
case,  should  proceed  to  a  decree  against  the  defendants  if  equity 
requires  it.^  If  the  parties  are  not  indispensable,  and  the  court  has 
no  jurisdiction  over  them  for  want  of  proper  citizenship,  they  may 
be  dismissed,  if  a  decree  can  be  made  without  prejudice  to  their 
rights,  and  the  court  may  retain  jurisdiction  as  to  the  other  parties 
to  the  bill.2 

§  1-0.  The  proper  citizenship  of  the  parties  should  appear  in  the 
record. — It  is  a  general  if  not  a  universal  rule  that  where  jurisdic- 
tion depends  upon  citizenship,  the  proper  citizenship  of  the  parties 
should  appear  in  some  manner  in  the  record,  as  the  federal  courts 
are  all  courts  of  defined  and  limited  jurisdiction,  and  no  presump- 
tions will  be  made  in  favor  of  them.^  Under  the  act  of  1789,  in 
cases  where  jurisdiction  depended  upon  citizenship,  it  was  necessary 
for  the  declaration  or  bill  to  show  not  only  that  the  parties  were 
citizens  of  different  states,  but  that  one  of  them  was  a  citizen  of  the 
state  where  the  suit  was  brought.  But  under  the  act  of  March  3, 
1875,  it  is  sufficient,  where  jurisdiction  depends  upon  citizenship,  if 
it  appears  from  the  record  that  the  controversy  is  between  citizens 
of  diff'erent  states.  And  under  this  act  the  courts  will  not  regard 
the  position  of  the  parties  on  the  record,  as  plaintiffs  or  defendants, 
as  determining  the  question  whether  the  controversy  is  between  citi- 
zens of  diff'erent  states,  but  will  ascertain  the  real  matter  in  dispute 
and  arrange  the  parties  on  one  side  or  the  other  of  that  matter,  as  cir- 
cumstances seem  to  require ;  and  if  after  such  arrangement  it  ap- 
pears that  those  on  one  side  are  all  citizens  of  different  states  from 
all  those  on  the  other  side,  the  court  has  jurisdiction.* 

Circuit  and  district  courts  have  such  powers  only  as  have  been 

1  Union  Bank  v.  Stafford,  12  How.  thall  v.  The  Collector,  9  Wall.  560; 
327;  Wood  V.  Davies,  18  How.  467  ;  Bingham  v.  Cabot,  3  Dall.  382:  Gas- 
Ward  V.  Arredondo,  1  Paine  410.  sies  v.  Ballon,  6  Pet.  761  ;  Eberley  v. 

2  Horn  V.  Lockhart,  17  Wall.  570.  Moore,  24  How.  157 ;  Christinas  v. 
See  also  Vattier  v.  Hinde,7  Pet.  252;  Russell,  5  Wall.  290;  Mason  v.  Rol- 
Mollan  V.  TorrancCj  9  Wh.  537  ;  Cam-  lins,  13  Wall.  602.  It  cannot  be  in- 
eron  v.  McRoberts,  3  Wh.  591 ;  Con-  ferred  argnmentatively  :  Brown  v. 
nolly  y.  Taylor,  2  Pet.  556.  Keene,  8  Pet.  115. 

^  McCormic  v.    Sullivant,    10   Wh.         *  The  Pacific  Railroad  v.  Ketchum, 
192  ;  De  Wolf  V.  Rabaud,  1  Pet.  476  ;     101  U.  S.  289. 
Ex  parte  Smith,  94  U.  S.  455  ;  Horn- 


118  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

conferred  upon  them  by  acts  of  Congress  not  inconsistent  ■with  the 
Constitution  of  the  United  States.^ 

§  127.  Nominal  and  formal  parties. — It  is  a  doctrine  recognized 
by  the  federal  courts  that  the  jurisdiction  of  the  courts  is  not 
affected  by  merely  nominal  and  formal  parties  who  are  without  the 
requisite  citizenship,  if  the  real  matter  in  controversy  is  between 
parties  having  a  proper  citizenship.^  And  if  it  appears  that  the 
real  controversy  is  between  citizens  of  different  states,  or  an  alien 
and  a  citizen,  and  the  plaintiff  is  by  some  positive  rule  of  law  com- 
pelled to  use  the  name  of  another  to  perform  merely  a  ministerial 
act  who  has  not,  nor  ever  had,  any  interest  in  or  control  over  it, 
the  courts  of  the  United  States  will  not  consider  any  others  as 
parties  to  the  suit  than  the  persons  between  whom  the  litigation 
before  them  exists.' 

§  12b.  Evidences  of  citizenship  ;  persons  of  African  descent. — 
A  person  who  resides  within  a  state  and  has  cari'ied  on  business 
within  the  same  for  a  considerable  length  of  time  would  be  pre- 
sumed to  be  a  citizen  of  the  same,  in  thq  absence  of  evidence  to  the 
contrary.  In  case  of  a  recent  removal  of  a  person  from  one  state 
to  another,  citizenship  may  depend  upon  the  circumstances  and  the 
intentions  of  the  parties.  The  exercise  of  the  right  of  suffrage 
would  ordinarily  be  quite  conclusive  of  the  latter  ;  and  if  a  party 
acquires  the  right  of  suffrage  in  a  state  to  which  he  has  removed, 
accompanied  by  acts  and  conduct  indicating  a  permanent  location, 
this  may  be  quite  satisfactory  evidence  of  citizenship.*  But  it  was 
held,  during  the  time  that  slavery  existed  in  this  country,  that  a 
free  negro  of  African  descent,  whose  ancestors  were  brought  to  this 
country  and  sold  as  slaves,  could  not  become  a  citizen.^ 

§  129.  Executors  and  administrators. — If  executors  or  adminis- 
trators are  personally  qualified  by  their  citizenship  to  bring  suit  in 
the  circuit  courts,  the  jurisdiction  will  not  be  defeated  by  the  fact 
that  the  parties  whom  they  represent  would  be  disqualified  from 

^  United  States  v.  Eckford.  6  Wall,  hoe  County  v.  Kansas  Pacific  R.  Co., 

4«4;    Seldon  v.    Still,    8    How.   441;  4  Dill.  277;  Hervey  v.  Illinois  Mid. 

United   States  v.   Clark,  8   Pet.  444  ;  R.  Co.,  7  Biss.  103;  Wood  v.  Davis, 

Eriscoe  v.  Bank,  11  Pet.   257  ;  Harri-  18  How.  467  ;  Union  Bank«j.  Stafford, 

son  V.  Hadley,  2  Dill.  229  ;    United  12  Id.  327. 

States  V.  Hudson,  7  Cr.  52.  ^  See  ante,  1 125,  Walden  v.  Skinner, 

■'   Browne   v.    Strode,    5    Cr.    303 ;  101  U.  S.  577. 

Wormley  v.  Wormley,    8   Wh.  421  ;  *  Shelton  v.  Tiffin,  6  How.  163. 

McNutt  V.  Bland,  2  How.  1  ;  Coal  Co!  ^  Dred   Scott  v.  Sanford,  19   How. 

V.  Blatchford,  11  Wall.   172;  Arapa-  393. 


CIRCUIT   COURTS.  119 

bringing  suit  on  account  of  their  citizenship.^  So  the  jurisdiction 
of  the  circuit  court  cannot  be  defeated  by  the  fact  that  with  the 
principal  defendant  are  joined,  as  nominal  parties,  the  executors  of 
a  deceased  trustee  who  are  citizens  of  the  same  state  as  the  com- 
plainant, where  the  bill  only  requires  of  them  the  ministerial  act  of 
conveying  title  to  the  lands  in  controversy,  if  the  power  so  to  do  is 
vested  in  them  by  the  laws  of  the  state  where  the  suit  is  brought."^ 
So  an  administrator  who  is  a  resident  of  one  state  may  sue  a  citizen 
of  another  state  in  the  circuit  court  of  the  state  where  he  resides, 
although  letters  of  administration  were  granted  in  the  latter  state. ^ 
So  if  a  receiver  of  a  corporation  is  a  citizen  of  a  state  other  than 
that  of  the  defendant,  he  may  sue  in  this  court  in  the  state  where 
the  latter  resides,  although  the  corporation  is  a  citizen  of  the  same 
state  with  the  defendant.* 

§  130.  Parties  having  only  equitable  interests. — The  circuit  court, 
in  determining  its  jurisdiction,  based  upon  the  proper  residence  of 
parties,  will  not,  in  suits  at  law,  always  inquire  intq  the  residence 
of  those  who  may  have  a  more  equitable  interest  in  the  matter  in 
controversy.^  But  trustees  cannot  maintain  a  bill  to  foreclose  a 
trust  deed  or  mortg-age,  where  one  of  them  is  a  citizen  of  the  same 
state  with  the  defendant,  although  the  cestui  que  trusts  are  citizens 
of  another  state. ^ 

§  131.  Where  citizenship  in  equity  not  important. — In  proceed- 
ings in  equity  the  citizenship  of  the  parties  is  not  always  important 
in  determining  the  jurisdiction  of  the  court.  Thus  where  a  bill 
was  filed  in  the  circuit  court  to  stay  proceedings  at  law  in  the  same 
court,  the  equity  suit  was  held  to  be  auxiliary  to  the  action  at  law, 
and  maintainable  without  regard  to  the  citizenship  or  alienage  of 
either  party  to  the  record.  But  the  complainant  in  such  a  case 
can  maintain  the  suit  for  any  other  relief  or  for  any  other  purpose, 
without  showing  the  proper  residence  of  the  parties,  as  required  by 
the  statute.^ 

1  Coal  Co.  V.  Blatchford,  11  Wall.  «  Coal  Co.  v.  Blatchford,  11  Wall. 

172.  172.     See  also  Hotel  Co.  v.  Wade,  97 

^  Walden  v.  Skinner,  101  U.  S.  577.  U.  S.  13.    But  see  Browne  v.  Browne, 

3  Rice  V.  Houston,  13  AN^all.  66.    See  1  Wash.  429. 

also   Walker   v.   Beal,    3    Cliff.   155;  '  St.  Luke's  Hospital  v.  Barclay,  3 

Weed  Sew.  M.  Co.  v.  Weeks,  3  Dill.  Blatch.  359;   Simms  v.  Guthrie,  9'Cr. 

261.  19  ;  Dunn  w.  Clark,  8  Pet.  3.     If  citi- 

*  Farlow  v.  Lea,  C.  L.  B.  329.  zenship  of  the  parties  gives  the  circuit 

^  Bonnafee  ?J.  Williams,  3  How.  574  ;  court  jurisdiction,  a  party  having  a 

Smith  V.  Kernochen,  7  Id.  198.  legal  right  to  maintain  an  action  at 


120  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

Where  a  bill  was  filed  in  order  to  procure  a  construction  of  orders, 
decrees  and  acts  done  or  made  by  the  court  in  which  it  was  filed,  it 
was  held  proper,  although  the  parties  interested  in  having  the  con- 
struction made  would  not,  for  want  of  proper  citizenship,  be  entitled 
to  proceed  by  an  original  bill  of  any  kind  in  such  court.^  So, 
where  a  party  had  obtained  judgment  at  law  in  the  circuit  court  of 
the  state  of  Michigan  against  a  citizen  of  that  state,  he  at  the  time 
being  a  resident  of  the  state  of  New  York,  and  afterwards,  having 
moved  to  the  state  of  Michigan,  where  the  defendant  still  resided, 
filed  a  bill  of  discovery  in  aid  of  execution  in  the  same  court  where 
the  original  judgment  was  obtained,  to  which  there  was  a'demurrer 
for  want  of  jurisdiction,  the  court  held  that  the  change  of  residence 
of  the  plaintiff  to  the  state  of  Michigan,  after  the  commencement 
of  the  original  suit,  did  not  oust  the  court  of  jurisdiction  in  this 
auxiliary  proceeding.^  But  in  such  a  case  it  should  appear  from 
the  averments  of  the  bill  that  the  matter  has  already  been  litigated 
in  the  same  court  by  the  same  persons,  and  is  in  addition  and  aux- 
iliary or  ancillary  to  such  original  suit ;  otherwise  the  circuit  court 
would  have  no  jurisdiction.^  If  the  bill  is  not  an  original  one,  but 
a  bill  of  revivor  filed  on  the  death  of  the  original  complainant,  this 
court  has  jurisdiction  of  the  suit,  if  it  had  original  jurisdiction,  even 
though  the  complainant  in  the  last  proceeding  may  be  a  resident 
of  the  same  state  as  the  defendant.^ 

If  a  bill  be  filed  to  set  aside  a  judgment  of  the  court  on  the 
ground  of  fraud,  the  court  has  jurisdiction,  although  both  parties 
thereto  are  citizens  of  the  same  state.^  And  where  the  interest 
of  parties  becomes  complicated  by  protracted  litigation,  and  it 
is  necessary  to  prevent  a  failure  of  justice,  the  circuit  court 
will  take  cognizance  of  a  bill  for  the  purpose  of  settling  the  rights 
and  protecting  the  interests  of  the  parties,  without  regard  to  the 
citizenship   of   the    parties.     But   the  jurisdiction   in    such    cases 

law  will  not  be  defeated  for  the  want  ■*  Dunn  v.  Clarke,  8  Pet.  1  ;  Morgan 

of  proper  citizenship  of  persons  who  v.  Morjian,  2  Wh.  290 ;  MoUan  v.  Tor- 

Iiave  mere  equitable  interests :   Bon-  ranee,  9  Id.  537 ;  Jones  v.  Andrews, 

nafee  w.  Williams,  3  How.  574.  10*\Vall.  337  ;  Logan  v.  Patrick.  5  Cr. 

^  Minnesota  Co.  v.  St.  Paul  Co.,  2  288  ;   Simms  v.  Guthrie,  9  Id.  19. 

AVall.  609.  ^  O'Brien  Co.  v.  Brown,  1  Dill.  588  ; 

■•'Hatch   V.    Dorr,   4    McLean    112.  Simms  t'.  Guthrie,  9  Cr.  19.     See  also 

See  also  Reilly  v.  Goldins,  10  Wail.  Osborne  c.  Mich.  Air  L.  R.  Co.,  11  C. 

56  ;  Clarke  v.  Mathewson,  12  Pet.  164.  L.  N.  367. 

3  Christmas  v.  Russell,  5  Wall.  290. 


CIRCUIT   COURTS.  121 

would  rest  upon  the  ground  that  they  were  merely  auxiliary  to 
former  suits. ^ 

§  132.  When  parties  may  be  dismissed. — If  the  court  has  no 
jurisdiction  over  parties  to  a  suit  for  want  of  proper  citizenship, 
and  they  are  not  indispensable,  and  a  decree  can  be  rendered  as  to 
the  other  parties  without  prejudice  to  them,  they  may  be  dismissed, 
and  the  court  proceed  to  determine  the  cause  between  the  remain- 
ing parties.^  Nor  will  the  court  inquire  into  the  residence  of  those 
who  have  a  mere  equitable  interest  in  the  subject  in  controversy, 
where  the  plaintiff  has  a  legal  right  to  sue,  and  where,  so  far  as  the 
legal  right  is  concerned,  the  parties  to  the  controversy  have  the 
requisite  citizenship.^ 

§  133.  Corporations  are  citizens. — In  the  construction  of  the 
Constitution  and  of  acts  of  Congress  conferring  jurisdiction  on  the 
federal  courts  on  the  grounds  of  citizenship  of  the  parties,  corpo- 
rations have  come  to  be  regarded  as  citizens  within  the  meaning  of 
the  law ;  it  being  conclusively  presumed  that  the  members  of  the 
corporations  are  residents  of  the  state  creating  them,  or  under 
whose  laws  they  were  organized.  And  a  suit  brought  by  a  citizen 
of  one  state  against  a  corporation  in  the  circuit  court  of  the  state 
where  it  was  created  or  organized,  other  than  that  of  the  residence 
of  the  plaintiff,  is  a  suit  between  citizens  of  different  states,  not- 
withstanding members  or  stockholders  of  the  corporation  may 
reside  in  the  same  state  with  the  plaintiff.* 

If  railroad  corporations  created  by  or  under  the  laws  of  different 
states  are  consolidated,  and  the  railroad  is  operated  by  virtue  of  that 
consolidation  as  one  continuous  entire  line  of  road,  the  corporation 
thus  consolidated  may  be  treated  for  the  purpose  of  jurisdiction  as 
a  citizen  of  either  state ;  and  if  a  corporation  is  created  under  the 
laws  of  two  states,  a  citizen  of  one  of  these  states  may,  so  far  as 
citizenship  is  concerned,  sue  it  in  the  other. ^ 

^  Cornwell  v.  White  Water,  etc.,  R.  ^  Bonnafee  v.  Williams,  3  How.  574 ; 

Co.,  4  Biss.  195;  Barth  v.  MoKeever,  Smith  v.  Kernochen,  7  How.  198. 

4  Id.  206  ;  Freeman  v.  Howe,  24  How.  *  Ohio  &  Miss.  R.  R.  Co.  v.  Wheeler, 

450;  Minnesota  R.  Co.  v.  St.  Paul  R.  1  Black.  296;  Louisville  R.  R.  Co.  v. 

Co.,  2  Wall.  609.     But  see  also  Dunn  Letson,  1  How.  497 ;  Marshal  v.  Bal- 

V.  Clarke,  8  Pet.  1  ;  Stone  v.  Bishop,  timore,  etc.,  R.  R.  Co.,  16  How.  314; 

4  Cliff.  593.  Covington,  etc.,  Co.  v.  Shepherd,  21 

2  Horn  ».  Lockhart,  17  Wall.  570;  How.   212;    Railroad   v.    Harris,    12 

Mollan  t\  Torrance,  9  Wh.  537  ;  Con-  Wall.  65;    Railroad  Co.   v.  Whitton, 

noUy  V.  Taylor,  2  Pet.  556  ;  Vattier  v.  13  Wall.  270. 

Hinde,  7  Pet.  252.  '"  Railway  Co.  v.  Whitton,  13  Wall. 


122  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

§  134.  Burden  of  proof  of  citizenship  of  corporations. — Where  a 
suit  was  brought  against  a  corporation  in  a  state  court  which  was 
removed  by  the  corporation  to  a  circuit  court  of  the  United  States  on 
the  ground  that  it  was  a  controversy  between  citizens  of  different 
states,  on  motion  of  plaintiff  to  remand  the  cause  it  was  held  that  the 
burden  of  proof  was  on  the  corporation  to  show  that  it  was  not  a  citizen 
of  the  same  state  with  the  plaintiff,  and  that  it  was  generally  incum- 
bent upon  the  suitors  who  invoke  the  jurisdiction  of  the  courts  of  the 
United  States  to  show  that  they  are  within  its  jurisdiction.^ 

If  a  corporation  has  appeared  generally  in  an  action,  it  cannot 
afterwards  deny  the  jurisdiction  of  the  court  on  the  ground  that 
original  process  was  not  duly  served  upon  it  in  the  district  of 
which  it  was  an  inhabitant  at  the  time  of  service.^  Nor  can  a 
circuit  court  be  ousted  of  jurisdiction  by  a  stipulation  of  a  foreign 
corporation  that  process  issued  in  any  suit  brought  against  said 
corporation  may  be  served  upon  any  of  its  agents  with  like  effect 
as  if  service  had  been  made  on  the  company  within  the  state.^ 

§  135.  When  the  United  States  are  plaintiffs. — When  the  United 
States  are  plaintiffs  or  petitioners,  the  circuit  court  has  jurisdiction, 
if  the  amount  in  controversy  exclusive  of  costs  exceeds  five  hun- 
dred dollars.* 

It  has  been  held  that  an  act  of  Congress  was  not  necessary  to 
enable  the  United  States  to  sue ;  that  they  have  an  inherent  right 
to  sue  in  their  own  name,  unless  a  different  mode  is  prescribed  by 
statute;^  and  that  if  they  sue  on  commercial  paper  they  have  all 
the  rights  and  are  subject  to  all  the  responsibilities  of  individuals 
who  are  parties  to  such  instruments.®  So  in  relation  to  the  proprie- 
torship of  real  or  personal  property,  the   United  States  have  the 

270 ;  Muller  v.  Dows,  94  U.  S.  444 ;  14   Blatch.   89.     See   also   Gracie   v. 

St.  Louis,  etc.,  R.  R.  Co.  v.  Ind.  &  St.  Palmer,  8  Wh.699;  Pollard w.  Pickett, 

Louis  R.   R.  Co.,    12    C.    L.   A.    73.  4  Cr.  421. 

In  such  case  the   citizen   of  a  state  ^  Ex  parte  Schollenberger,  96  U.  S. 

other  than  either  of  the  states  under  369. 

Avhose     laws     the     corporation    was  *  Rev.  Stat.    i§  629,    sub.  2  and  3 ; 

created  may    sue    it    in   the   circuit  act  March  3,  1875,  |  1. 

court  for  either,  where  the  directors  ^  United    States  v.  Baker,  1    Paine 

generally  meet  to  transact  business:  156.     See  also  United  States  u.  Baker,  . 

Culbertson  v.  Wabash  N.  Co.,  4  Mc-  12  Wh.  589. 

Lean  544.  ^  United  States  v.  Bank  of  the  Me- 

^  Cope] and    v.     The     Memphis    &  tropolis,  15  Pet.  377  ;  United  States  «. 

Charleston   R.  Co.,  3  Woods.  (C.  C.)  Dunn,  6  Pet.  51;  The  Floyd  Accept- 

651.  ances,  7  Wall.  666. 

^  Kelsey  v.  Pennsylvania  R.  R.  Co., 


CIRCUIT    COURTS.  123 

same  rights  and  remedies,  and  are  subject  to  similar  liabilities  in 
managing  and  dealing  with  it  through  their  agents,  as  natural 
persons.^  So  the  United  States  courts  have  jurisdiction  in  case  of 
suits  on  bonds  of  the  agents  or  officers  of  the  United  States,  given 
in  pursuance  of  the  statutes  of  the  United  States.^  And  where  a 
bond  was  given  by  a  postmaster  to  the  Postmaster-General  of  the 
United  States,  it  was  held  that  the  Postmaster-General  could  main- 
tain an  action  in  his  own  name  in  the  circuit  court  of  the  United 
States  on  the  bond.^ 

§  lob.  Where  citizens  of  the  same  state  claim  lands  under  grants 
of  different  states. — Under  the  present  statutes,  if  the  amount  in 
controversy  is  sufficient,  the  circuit  courts  may  take  cognizance  of 
cases  where  the  parties  to  a  controversy  are  citizens  of  the  same 
state,  provided  they  claim  lands  under  grants  from  different  states. 
The  Constitution  contained  this  provision,  as  well  as  the  act  of 
1789,  under  which  it  was  held  that  the  circuit  court  in  Vermont  had 
jurisdiction  where  both  parties  were  residents  of  that  state,  and 
one  party  claimed  land  under  a  grant  from  the  state  of  New  Hamp- 
shire, and  the  other  under  a  grant  from  the  state  of  Vermont, 
although,  at  the  time  of  the  first  grant,  Vermont  was  a  part  of  the 
state  of  New  Hampshire.*  So  it  was  held  that  the  jurisdiction  of  a 
circuit  court  extended  to  a  controversy  between  citizens  of  Kentucky 
claiming  lands  under  different  grants, — one  under  a  grant  from  the 
state  of  Kentucky, — but  upon  warrants  issued  by  the  state  of  Vir- 
ginia, and  locations  founded  thereon  prior  to  the  separation  of 
Kentucky  from  Virginia,  and  the  other  based  upon  a  grant  from 
the  state  of  Virginia.  The  court  in  this  case,  in  construing  the 
Constitution  and  the  act  of  Congress,  held  that  it  was  the  grant 
that  gave  the  title  and  jurisdiction.^ 

§■1  0*7 
io<.    Controversy  bet'ween  citizens  of  a  state  and  foreign  states, 

citizens  or  subjects. — Under  the  provisions  of  the  statute,  which  is 

also  the  language  of  the  Constitution  on  the  same  subject,  it  has 

been  decided  that  where  both  the  plaintiff  and   defendant  were 

^  Neilson  v.  Lao:ow,  12    How.  98;  ^Postmaster-General   v.  Early,    12 

United  States  v.  Tingey,  5  Pet.  115;  Wh.  136, 

United  States  v.  Bradley,  10  Pet.  343:  *  The  Town  of  Parolet  v.  Clark,  9 

United  States  v.  Hage,  6  How.  279  |  Cr.  292  (1815)  ;   act  March  3,  1875, 

s.  c,  13  How.  478.  eh.  137,  ^  1,  18  Stat.  L.  470, 

2  Smith  V.    United    States,    5   Pet,  '  Colson  v.  Lewis,  2  Wh,  377,     See 

293;  Farrar  v.  United  States,  5  Pet,  also  the  Bank  of  the  U,  S,  ?;,  Devereux, 

373,  5  Cr.  61  (1809), 


124  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

aliens,  a  federal  court  would  have  no  jurisdiction.^  The  provisions 
of  the  first  section  of  the  act  of  1875,  conferring  powers  upon  the 
circuit  courts,  follow  the  language  of  the  Constitution.  And  we 
shall  hereafter  notice  more  particularly  that  the  language  of  the 
second  section  of  the  act  relating  to  the  removal  of  causes  from 
the  state  courts  to  the  circuit  courts  is  similar  to  the  lansuage  of 
the  section  we  are  considering,  so  that  if  by  reason  of  the  proper 
citizenship  of  the  parties  a  suit  may  be  brought  originally  in  a 
circuit  court,  for  the  same  reason  may  a  cause  originally  commenced 
in  a  state  court  be  removed  to  the  circuit  court.^  But  we  will 
hereafter  consider  the  subject  of  the  removal  of  causes  from  the 
state  courts  to  the  circuit  courts  of  the  United  States. 

In  case  of  the  alienage  of  one  party,  the  other  party  must  be  a 
citizen  in  order  to  confer  jurisdiction  on  the  ground  of  proper 
citizenship  ;  and  these  facts,  as  well  as  all  other  jurisdictional  facts, 
should  be  averred  in  the  pleadings.^  Where  the  alienage  of  one 
party  is  the  ground  of  jurisdiction,  it  should  be  not  only  so  averred, 
but  also  that  he  is  a  citizen  or  subject  of  some  one  foreign  state^^ 
But  an  alien  legatee  or  executor  may  sue  an  executor  who  is  a 
citizen  of  the  state  where  the  suit  is  brought,  although  the  testators 
whom  they  represent  were  both  citizens  of  the  same  state.^ 

§  138.  Exclusive  cognizance  of  crimes. — The  first  section  of  the 
act  of  March  3,  1875,  provides  that  the  circuit  courts  "  shall  have 
exclusive  cognizance  of  all  crimes  and  offences  cognizable  under  the 
authority  of  the  United  States,  except  as  otherwise  provided  by 
law,  and  concurrent  jurisdiction  with  the  district  courts  of  the 
crimes  and  offences  cognizable  therein." 

The  criminal  jurisdiction  of  the  circuit  court  is  expressly  con- 
ferred by  this  provision,  which  is  the  language  of  the  Judiciary  Act 
of  1789,^  and  of  the  Revised  Statutes  on  the  same  subject.'' 

The  federal  courts  have  no  jurisdiction  in  criminal  cases,  except 

1  Montalet  v.   Murray,   4   Cr,   46  ;  Breithaupt  v.  Bank,  1  Pet.  238.     See 

Mossman  v.  Higginson,  4  Dall.   12-,  also  Bi-eadlove  v.  Nicolet,  7  Pet.  413  ; 

Piquignot  v.  The  Pennsylvania  Pt.  Co.,  Jones   v.    McMasters,    20    IIow.    8  ; 

16  How.  104;  Hinckley  v.  Byrne,  1  Weems    v.   George,    13    How.    190; 

Deady  224.  Bonaparte  v.  Camden  and  A.  R.  Co., 

"  Act  of  1875,  U  1,  2.  1  Bald.  (C.  C.)  205 ;  United  States  v. 


^  Montalet  v.  Murray,  4  Cr.  46 
Prentiss  v.  Brennan,  2  Blatch.  (C.  C.) 
162 ;  Bateau  v.  Bernard,  3  Blatch 
244 ;  Daniel  v.  Twentyman,  2  Pet, 
146. 

*  Wilson  V.  City  Bank,  3  Sum.  422 


Hall,  98  U.  S.  343. 

^  Chappedelaine  v.  Dechenaux,  4 
Cr.  306. 

«  Judiciary  Act  of  1789,  see.  2 ;  1 
Stat,  at  Large  78. 

'  Rev.  Stat,  g  629,  sub.  20. 


CIRCUIT    COURTS.  125 

such  as  is  expressly  conferred  upon  them  by  the  Constitution  and 
the  acts  of  Congress,  and  they  can  try  no  offences  except  such  as 
are  permitted  by  said  Constitution  and  acts.^  They  have,  strictly 
speaking,  no  common  law  jurisdiction.^ 

The  jurisdiction  of  the  circuit  courts  is  expressly  made  concur- 
rent with  the  district  courts  of  crimes  and  offences  cognizable 
therein.  It  is  important,  therefore,  to  understand  the  facts  and  cir- 
cumstances under  which  the  district  court  may  exercise  jurisdiction 
in  such  cases. 

The  statute  provides,  in  reference  to  the  criminal  jurisdiction  of 
the  district  courts,  as '  we  have  already  seen,  that  they  shall 
have  jurisdiction  "  of  all  crimes  and  offences  cognizable  under 
the  authority  of  the  United  States,  committed  within  their  respec- 
tive districts,  or  upon  the  high  seas,  the  punishment  of  which  shall 
not  be  capital,  except  in  the  cases  mentioned  in  section  5412,  title 
Crimes."* 

The  state  courts  have  no  jurisdiction  of  offences  committed 
against  the  laws  of  the  United  States,  and  no  part  of  the  judicial 
power  of  the  United  States  can  consistently  be  delegated  to  the 
state  courts. 

It  sometimes  occurs  that  the  same  act  is  a  transgression,  not 
only  of  a  law  of  the  United  States,  but  of  a  statute  of  a  state. 
Thus  it  may  be  an  offence  under  a  state  law  to  pass  counterfeit 
coin,  although  the  same  act  is  an  offence  under  an  act  of  Congress. 
In  such  a  case  a  conviction  and  punishment  under  the  state  law  is 
no  bar  to  a  prosecution  under  the  act  of  Congress.*  So  where  an 
assault  upon  a  marshal,  or  a  hindering  of  him  in  the  execution  of 
process,  is  an  offence  against  the  laws  of  the  United  States,  as  well 
as  of  the  state  where  the  offence  is  committed,  he  may  be  tried 
and  convicted  by  both,  and  a  conviction  by  either  would  be  no  bar 
to  a- prosecution  and  conviction  by  the  other. ^ 


'  United  States  v.  Barney,  5  Blatch 
29-1(1866). 

'^  Ex  parte  Bollman,  4  Cr.  75 
United  States  v.  Hudson,  7  Cr.  32 
United  States  v.  Coolidge,  1  Wh.  415 
United    States   v.  Wilson,    3   Blatch 


*  Fox  V.  Ohio,  5  How.  410;  Prigi; 
V.  Pennsylvania,  16  Pet.  540;  City  of 
New  York  v.  Miln,  11  Pet.  142;  Bar- 
ron V.  Baltimore,  7  Pet.  243  ;  Huston 
V.  Moore,  5  Wh.  I  ;  White  v.  Com- 
monwealth, 4   Bin.   418;    Stearns  v. 


435;    United   States  v.   Lancaster,    2  United  States,  2  Paine  (C.  C.)  300 

McLean  431  ;  United  States  v.  Irwin,  United  States  v.  Holliday.  3  Wall.  407. 
5  McLean  178  ;  United  States  v.  Wor-        ^  Moore  v.  The  State  of  Illinois,  14 

rell,    2   Dall.    384;    United    States  v.  IIow.  13.     See  also  The  United  States 

Reese,  4  Saw.  629.  v.  Bevans,  3  Wh.  336. 
*  Rev.  Stat.  |  563,  sub.  1. 


126  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

§  139.  Cognizance  of  crimes  where  the  punishment  is  death. — We 
have  observed  that  the  circuit  court  has  exclusive  cognizance  of 
all  crimes  and  offences  cognizable  under  the  authority  of  the  United 
States,  except  where  it  is  otherwise  provided  bj  law,  and  concur- 
rent jurisdiction  with  the  district  court  of  all  offences  cognizable 
therein.  As  the  district  courts  have  jurisdiction  of  all  crimes  and 
offences  cognizable  under  the  authority  of  the  United  States  com- 
mitted in  their  respective  districts,  or  upon  the  high  seas,  "  the 
punishment  of  which  is  not  capital,"  etc.,  it  follows  that  the  circuit 
courts  have  cognizance  of  all  capital  offences,  except  where  other- 
wise provided  by  law.  The  exception  embraces  those  cases  that, 
under  the  provisions  of  the  statute,  are  triable  by  a  general  court- 
martial  for  offences  committed  by  a  person  while  in  the  service  of 
the  army  or  navy  of  the  United  States.' 

There  are,  however,  several  offences  under  the  statutes  of  the 
United  States  punishable  by  death,  of  which  the  circuit  courts  of 
the  United  States  have  exclusive  cognizance.  These  offences  em- 
brace piracy  upon  the  high  seas,^  and  accessories  thereto  ;  ^  treason ;  * 
and  murder  in  certain  places  within  the  territorial  or  maritime 
jurisdiction  of  the  United  States. 

Section  5339  of  the  Revised  Statues  provides  :  Every  person 
who  commits  murder — 

First.  Within  any  fort,  arsenal,  dock-yard,  magazine,  or  in  any 
other  place  or  district  of  country  under  the  exclusive  jurisdiction  of 
the  United  States ; 

Second.  Or  upon  the  high  seas,  or  in  any  arm  of  the  sea,  or  in 
any  river,  haven,  creek,  basin  or  bay  within  the  admiralty  jurisdic- 
tion of  the  United  States,  and  out  of  the  jurisdiction  of  any  par- 
ticular state ; 

Third.  Or  who,  upon  any  such  waters,  maliciously  strikes,  stabs, 
wounds,  poisons  or  shoots  at  any  other  person,  of  which  striking, 
stabbing,  wounding,  poisoning  or  shooting  such  other  person  dies, 
either  on  land  or  at  sea,  within  or  without  the  United  States,  shall 
suffer  death. ^ 

1  Rev.  Stat.  |  1342,  art.  58  ;  ?  1624,  *  Id.  ?  5331. 

art.  4.     As  to  criminal  jurisdiction  of  *  Rev.   Stat.  §  5339;     The  United 

the  circuit  courts,  see  further,  United  States   v.   Bevans,  3    Wh.  336.     For 

States  V.  Holliday,  3  Wall.  4U7  ;  Same  farther  construction  of  the  language 

V.  Donlan,  5  Blatch.  284.  of  this  act,  see  U.  S.  v.  McGill,  4  Datl. 

■'  Rev.  Stat.  §  5323.  426 ;  U.   S.  v.  Furlong,  5  Wh.   184  ; 

3  Id.  §  5324.  U.  S.  V.  Holmes,  5  Wh.  412 ;  U.  S.  v. 


CIRCUIT   COURTS.  127 

§  140.  Capital  cases  remitted  from  the  district  to  circuit  courts. — 
As  capital  offences  cannot  be  tried  by  the  district  courts,  it  is  pro- 
vided by  statute  that  "every  indictment  of  a  capital  offence  pre- 
sented to  a  district  court,  together  with  the  recognizances  taken 
therein,  shall,  by  order  entered  on  the  minutes,  be  remitted  to  the 
next  session  of  the  circuit  court  for  the  same  district ;  and  on  the 
filing  of  such  order  and  indictment  with  the  clerk  of  such  circuit 
court,  that  court  shall  proceed  thereon  in  the  same  manner  as  if 
said  indictment  had  been  originally  found  and  presented  therein."' 

It  is  obvious  that  cases  must  occur  where  there  may  be  some  un- 
certainty as  to  the  character  of  the  offence,  as  whether  it  is  capital 
or  otherwise;  and  where  it  is  developed  before  a  grand  jury  of  the 
district  court  that  it  is  a  capital  one,  the  provision  of  the  foregoing 
section,  which  authorizes  the  finding  and  presenting  of  an  indictment 
therefor  to  the  district  court,  and  the  remittal  of  the  same  to  the 
circuit  court  of  the  same  district,  is  manifestly  wise  and  beneficent. 

For  forms  of  indictments,  see  post,  Nos.  188,  189,  190. 

§  141.  Offences  on  the  high  seas,  where  triable. — The  trial  of  of- 
fences committed  upon  the  high  seas  or  elsewhere  out  of  the  juris- 
diction of  any  particular  state  or  district  must  be  in  the  district 
where  the  offender  is  found  or  into  which  he  is  first  brought.^ 

The  foregoing  provision  of  the  Revised  Statutes  last  cited  is  a  sub- 
stantial re-enactment  of  former  acts  of  Congress,  under  which  it  has 
been  held  that  in  order  to  confer  jurisdiction  upon  a  federal  court  in 
such  cases  it  must  appear,  not  only  that  the  accused  was  first  ap- 
prehended in  or  first  brought  into  the  district  where  the  trial  is 
had,  but  that  the  offence  was  committed  out  of  the  jurisdiction  of 
any  state,  and  not  within  any  other  district  of  the  United  States. 
This  is  a  matter  for  the  jury  to  determine.  And  where  they  merely 
found  that  the  offence  was  committed  at  a  certain  place  designated 
in  the  indictment,  but  omitted  to  find  that  this  place  was  outside 
the  limits  of  any  state,  the  verdict  was  set  aside. ^ 

Marchant,  12  Wh.  480  ;  U.  S.  r.  Dong-  circuit   to   the   district  courts:    Rev. 

lass,  2  Blatch.  207;  U.  S.  v.  Magill,  1  Stat,  ^l  1037,  1038. 

Wash.  463 ;  U.   S.  v.  Ross,   1  Gallis.  ^  Rev.  Stat.  §  730. 

624  ;  U.  S.  V.  Cornell,  2  Mas.  91  ;  U.  ^  United  States  w.  Jackalow,  1  Black. 

S.  V.  Ferman,  4  Mas.  505.  484.    See  also  United  States  v.  Arwo, 

^  Rev.  Stat.  I  1039.    We  shall  here-  19  Wall.  486 ;  United  States  v.  Baker, 

after  consider  the  power  to  remit  in  5  Blatch.  6.    See  also  ch.  xxi.,  note  to 

other  cases,  not  only  from  the  district  §  730  of  Rev.  Stat. 
to  the  circuit  courts,  but  also  from  the 


128  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

§  142.  Offences  in  other  cases,  where  triable. — It  is  further  pro- 
vided by  statute  that  in  other  cases,  "  the  trial  of  offences  punish- 
able with  death  shall  be  had  in  the  county  where  the  offence  was 
committed,  where  that  can  be  done  without  great  inconvenience;"* 
and  that,  "when  any  offence  against  the  United  States  is  begun  in 
one  judicial  circuit  and  completed  in  another,  it  shall  be  deemed  to 
have  been  committed  in  either,  and  may  be  dealt  with,  inquired  of, 
tried,  determined  and  punished  in  either  district,  in  the  same  man- 
ner as  if  it  had  been  actually  and  wholly  committed  there."  ^  The 
latter  provision,  it  is  manifest,  applies  as  well  to  district  as  to  the  cir- 
cuit courts  of  the  United  States.  The  statutory  provisions  referred 
to  clearly  point  out  the  particular  forum  that  has  cognizance  of 
offences  against  the  laws  of  the  United  States,  whether  capital  or 
otherwise. 

§  143.  Where  a  civil  suit  must  be  brought. — "  No  civil  suit  can 
be  brought  before  either  a  circuit  or  district  court,  against  any  per- 
son by  any  original  process  or  proceeding  in  any  other  district  than 
that  whereof  he  is  an  inhabitant,  or  in  which  he  shall  be  found  at 
the  time  of  serving  such  process  or  commencing  such  proceedings, 
except  as  hereinafter  provided."^  This  prohibition  has  been  a  part 
of  the  statutes  since  the  adoption  of  the  Judiciary  Act  of  1789. 
The  service  should  be  personal.  The  want  of  proper  service  may, 
however,  be  waived  by  entering  an  appearance  to  the  suit.*  It  is 
not  necessary  to  aver  on  the  record  that  the  defendant  is  an  inhab- 
itant of  the  district,  and  when  he  appears  without  objection  it  is  an 
admission  of  the  regularity  of  service.^ 

§  144.  Attachment  of  property  will  not  confer  jurisdiction. — If 
the  defendant  is  not  an  inhabitant  of  the  district  where  the  suit  is 
brought,  nor  served  with  original  process  therein,  jurisdiction  can- 
not be  acquired  by  means  of  an  attachment  of  his  property  within 
the  district  under  the  statutes  of  the  state. ^  Nor  can  the  process 
of  foreign  attachment  be  properly  issued  where  the  defendant  is 

1  Rev.  Stat.  |  729.  '"  Grade  v.  Palmer,  8  Wh.  605 ;  Pol- 

2  Rev.    Stat.    I   731.      "No   person     lard  ??.  Pickett,  4  Cr.  421. 

shall  be  arrested  in  one  district  for  ^  Day  u.  Newark  Man.  Co.,  1  Blatch. 

trial  in  another  in  any  civil  action  628 ;  Caffee  v.  Hayward,  20  How.  208  ; 

before   a   circuit   or   district  court :"'  ^xjjar^e  Railway  Company,  103  U.  S. 

act  of  March  3,  1875,  |  1.  794.     In  this  case  the  court  held  that 

^  Act  of  March  3,  1875,  |  1.  a  judgment  of  the  circuit  court  relat- 

*  Levy  V.  Fitzpatrick,  15  Pet.  167;  ing  to   its  jurisdiction  would  not  be 

Toland  v.  Sprague,  12  Pet.  300;  Har-  reviewed  upon  a  petition  for  a  man- 

rison  v.  Rowan,  1  Pet.  (C.  C.)  489.  damns. 


CIRCUIT    COURTS.  120 

domiciled  abroad,  though  a  citizen  of  the  United  States,  if  he  is  not 
dulj  served  with  original  process  within  the  district.^  Nor  can  a 
party  be  said  to  be  found  within  the  district,  or  properly  served 
there,  who  has  been  inveigled  into  it  for  the  purpose  of  making  ser- 
vice there,  by  the  false  representations  or  deceitful  contrivances  of 
the  plaintiff,  or  who  is  there  merely  to  attend  the  trial  of  a  case  to 
which  he  is  a  party,  or  to  plead  to  an  indictment  against  him.^ 

§  145.  Where  service  may  be  had  by  publication. — Section  8 
of  the  act  of  March  3,  1875,  provides :  "  That  when  in  any  suit  com- 
menced in  any  circuit  court  of  the  United  States  to  enforce  any 
legal  or  equitable  lien  upon  or  claim  to,  or  to  remove  any  incum- 
brance or  lien  or  cloud  upon  the  title  to  real  or  personal  property 
found  within  the  district  where  such  suit  is  brought,  one  or  more  of 
the  defendants  therein  shall  not  be  an  inhabitant  of  or  found  within 
the  said  district,  or  shall  not  voluntarily  appear  thereto,  it  shall  be 
lawful  for  the  court  to  make  an  order  directing  such  absent  de- 
fendant or  defendants  to  appear,  plead,  answer  or  demur,  by  a  day 
certain  to  be  designated,  which  order  shall  be  served  on  such  absent 
defendant  or  defendants,  if  practicable,  wherever  found,  and  also 
upon  the  person  or  persons  in  charge  of  said  property,  if  any  there 
be;  or  where  such  personal  service  upon  such  absent  defendant  or 
defendants  is  not  practicable,  such  order  shall  be  published  in  such 
manner  as  the  court  may  direct,  not  less  than  once  a  week  for  six 
successive  weeks ;  and  in  case  such  absent  defendant  shall  not  appear, 
plead,  answer  or  demur  within  the  time  so  limited,  or  within  some 
further  time  to  be  allowed  by  the  court  in  its  discretion,  and  upon 
proof  of  the  service  or  publication  of  said  order,  and  the  perform- 
ance of  the  directions  contained  in  the  same,  it  shall  be  lawful  for 
the  court  to  entertain  jurisdiction  and  to  proceed  to  a  hearing  and 
adjudication  of  such  suit  in  the  same  manner  as  if  such  absent 
defendant  had  been  served  with  process  within  the  said  district ; 
but  said  adjudication  shall,  as  regards  said  absent  defendant  or 
defendants,  without  appearance,  affect  only  the  property  which  shall 
have  been  the  subject  of  the  suit,  and  under  the  jurisdiction  of  the 

1  Toland  v.  Sprague,  12  Pet.  300;  1  Wall,  Jr.,  267;  Smith  v.  Little,  5 

Mauldin    v.   Carrol,  3    Hughes  249;  Biss.   159;    Steiger  v.   Bonn,  4  Fed. 

Picquet  w.  Swan,  5  Mason  35;  Sadler  Rep.  17;  s.  c,  13  C.  L.  N.  60;  Ju- 

V.  Hudson,  2  Curt.  6.  neau  Bank  v.  McSpedden,  5  Biss.  64  ; 

^  Union   Sugar  Refinery  v.  Mathie-  U.    S.   v.    Bridguian,    8    A.    L,    Rec. 

son,  2  CliflP.  304 ;  Parker  v.  Hotchkiss,  541. 

9 


130  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

court  tborein  within  said  district.  And  where  a  part  of  said  real 
or  personal  property  against  which  such  proceedings  shall  be  taken 
shall  be  within  another  district,  but  within  the  same  state,  said  suit 
may  be  brought  in  either  district  in  said  state;  jjrovided,  however, 
that  any  defendant  or  defendants  not  actually  personally  notified, 
as  above  provided,  may  at  any  time  within  one  year  after  any  final 
judgment  in  any  suit  mentioned  in  this  section  enter  his  appear- 
ance in  said  suit  in  said  circuit  court;  and  thereupon  the  said 
court  shall  make  an  order  setting  aside  the  judgment  therein,  and 
permitting  said  defendant  or  defendants  to  plead  therein  on  pay- 
ment by  him  or  them  of  such  costs  as  the  court  shall  deem  just ; 
and  thereupon  said  suit  shall  be  proceeded  with  to  final  judgment, 
according  to  law."^ 

There  can  be  no  doubt  that  this  section  repeals,  by  implication, 
section  738  of  the  Revised  Statutes,  as  it  contains  fuller  provisions 
on  the  same  subject.  Where  a  suit  was  brought  by  a  citizen  of 
Louisiana,  in  the  circuit  court  of  the  United  States  for  the  district 
of  Arkansas,  to  enforce  a  lien  on  lands  situated  within  that  district, 
and  one  of  the  defendants,  a  citizen  of  the  state  of  Tennessee,  was 
served  with  process  in  the  state  of  Arkansas,  it  was  held  that  such 
service  gave  the  court  jurisdiction  of  his  person  and  of  the  subject 
matter;  and  that  where  it  acquires  such  jurisdiction  it  will  retain  it 
for  all  purposes  within  the  general  scope  of  the  equities  sought  to 
be  enforced.^ 

§  146.  Where  all  of  the  defendants  cannot  be  served  in  other 
cases. — In  other  cases  where  personal  service  cannot  be  made  upon 
all  of  the  defendants,  section  Y37  of  the  Revised  Statutes  provides 
that  the  circuit  court  may  take  cognizance  of  suits  and  proceed  to  the 
trial  and  adjudication  thereof  between  the  parties  who  are  properly 
before  the  court,  in  which  case,  however,  the  judgment  or  decree 
rendered  therein  will  not  prejudice  other  parties  not  regularly  served 
with  process  or  voluntarily  appearing  to  answer.  The  non-joinder 
of  parties  who  are  not  inhabitants  of  nor  found  within  the  district  does 
not  constitute  matter  of  abatement  or  objection  to  the  suit.^     This 

'  18  Stat.  L.,  ch.  137,  ?  8.  district  in  which  the  suit  is  brought, 

-  Ober  V.  Gallagher,  93  U.  S.  199.  and  do  not  voluntarily  appear,  the 

^  The  language  of  the  provision  is  court  may  entertain  jurisdiction  and 

as  follows:  proceed  to  the  trial  and  adjudication 

"When  there    are    several  defend-  of  the  suit  between  the  parties  who 

ants  in  any  suit  at  law  or  in  equity,"  are  properly  before  it;  but  the  judg- 

and  one  or  more  of  them  are  neither  ment  or  decree  rendered  therein  shall 

inhabitants  of  nor  found  within  the  not  conclude  or  prejudice  other  par- 


CIRCUIT   COURTS.  131 

section  evidently  remains  unrepealed  by  the  provisions  of  the  act  of 
March  3,  1875,  as  there  is  nothing  therein  contained  providing  for 
such  a  case  ;  nor  is  it  inconsistent  with  any  provision  of  said  act. 
Under  its  provisions  a  party  residing  out  of  the  district  and  not  served 
with  process  within  it  may  voluntarily  appear  and  become  a  party 
to  the  suit,  when  otherwise  the  court  would  have  no  jurisdiction 
over  him.^  So  if  there  are  several  parties  jointly  and  severally 
liable  on  a  contract,  as  for  instance  in  case  of  the  endorsers  of  a  bill 
of  exchange,  and  the  makers  and  endorsers  of  a  joint  and  several 
promissory  note,  the  court  would  have  jurisdiction  of  those  defend- 
ants properly  served  with  process  within  the  district,  and  could 
proceed  to  judgment  against  them,  though  the  other  parties  reside 
without  the  district,  and  are  not  served  within  it  and  do  not  volun- 
tarily appear.^ 

§  147.  When  a  party  may  be  omitted ;  when  not. — The  court 
will  make  no  decree  in  favor  of  a  complainant  where  no  relief  can 
be  given  without  taking  an  account  between  an  absent  party  and 
one  before  the  court,  though  the  defect  of  parties  for  this  purpose 
may  not,  strictly  speaking,  defeat  jurisdiction.  But  if  a  prior 
incumbrancer  is  out  of  the  jurisdiction  of  the  court,  or  cannot  be 
joined  without  defeating  it,  it  has  been  held  proper  for  the  court  to 
dispense  with  his  presence  and  order  a  sale  subject  to  his  incum- 
brance, which  would  not  be  affected  by  such  an  order  or  decree.^ 
If  parties  have  a  merely  nominal  interest  in  the  suit  or  proceeding 
as  defendants,  and  reside  beyond  the  jurisdiction  of  the  court,  it 
should  not  dismiss  a  bill  because  they  are  not  made  parties,  but 
proceed  to  a  decree  against  the  actual  defendants.*  But  where  the 
subject-matter  of  the  action  lies  beyond  the  limits  of  the  territorial 
jurisdiction  of  the  court,  and  the  process  of  the  court  cannot  reach 
the  locus  in  quo,  the  provisions  of  the  act  relating  to  non-resident 
parties  do  not  apply, ^ 

ties  not  regularly  served  with  process  Clearwater  v.  Meredith,  21  How.  489; 

nor  voluntarily  appearing  to  answer ;  Inbusch  v.  Farwell,  1  Black.  5.')6. 

and  non-joinder  of  parties  who  are  not  ^  Hagan  v.   Walker,   14  How.   29; 

inhabitants  of  nor  found   within  the  Louisville  R.  R.  Co.  v.  Letson,  2  How. 

district  as  aforesaid  shall  not  consti-  497;  Findlay  v.  Bank,  11  Wh.  304. 

tute  matter  of  abatement  or  objection  *  Union  Bk.  v.  Stafford,  12  How.  327. 

to  the  suit."  5  Northern  Ind.  R.  R.  Co.  v.  Mich. 

1  Taylor  v.   Cook,  2  McLean   516;  Central  R.  R.  Co.,  15  How.  233  ;  s.  c, 

Pond  V.  Vermont  Valley  R.  R.  Co.,  12  5  McLean  444. 

Blatch.  282.  Under  a  former  act,  similar  to  the 

^  Cooper  V.  Gordon,  4  McLean  6;  section  under    consideration,  it  was 


132  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

§  148.  Formal  parties  may  be  dispensed  with. — Merely  formal 
parties  may,  as  we  have  observed,  be  dispensed  with,  and  if  they 
are  made  parties  they  may  be  dismissed  if  there  can  be  a  complete 
adjudication  between  other  parties  without  them.^  But  if  persons 
have  such  an  interest  in  the  subject-matter  of  the  suit  that  a  final 
decree  cannot  be  made  without  prejudice  to  that  interest  and  a 
defeat  of  their  just  and  equitable  rights,  they  must  be  made  parties, 
and  after  being  made  parties  they  cannot  be  dismissed,^  If,  how- 
ever, one  defendant  has  a  severable  interest  in  the  matter  in  con- 
troversy, and  a  decree  may  be  rendered  against  the  other  defendants 
without  prejudice  to  him,  the  suit  may  be  dismissed  as  to  him,  and 
retained  as  to  the  others,  where  the  court  would  have  no  jurisdic- 
tion over  the  former  for  want  of  proper  citizenship.^ 

§  149.  Suits  on  contract  in  favor  of  an  assignee. — Section  1  of 
the  act  of  March  3,  1875,  provides  that  neither  the  circuit  nor  dis- 
trict courts  shall  "  have  cognizance  of  any  suit  founded  on  contract 
in  favor  of  an  assignee,  unless  a  suit  might  have  been  prosecuted  in 
such  court  to  recover  thereon  if  no  assignment  had  been  made, 
except  in  case  of  promissory  notes  negotiable  by  the  law  merchant 
and  bills  of  exchange." 

This  provision  was  undoubtedly  adopted  to  prevent  assignments 
of  contracts  other  than  notes  and  bills  of  exchange  merely  for  the 
purpose  of  conferring  jurisdiction  on  the  federal  courts.  If  a  suit, 
however,  should  be  brought  on  such  a  contract  in  a  state  court, 
and  it  should  appear  that  the  real  parties  in  interest  were  citizens  of 
different  states,  it  could  perhaps  be  removed  to  a  circuit  court  of  the 
United  States,  and  be  there  adjudicated,  under  the  provisions  of 
the  second  section  of  the  same  act,  providing  for  the  removal  of 

held  that  no  decree  in  equity  could  jection  to  the  decree  in  such  a  case 
he  made  in  the  absence  of  an  indis-  may  be  taken  at  the  time  of  the  hear- 
pensable  party  whose  rights  must  ino;  or  in  the  appellate  court :  Coiron 
necessarily  be  affected  by  the  decree,  v.  Alillaudon,  19  How.  113;  Robertson 
Thus  where  a  bill  was  filed  in  the  cir-  v.  Carson,  19  Wall.  94  ;  Kendig  v. 
cuit  court  to  set  aside  an  agreement  Dean,  97  U.  S.  423. 
executed  by  six  individuals,  four  of  ^  Wormley  v.  Worraley,  8  Wh.  421 : 
whom  resided  in  the  state  where  the  Carneal  v.  Banks,  10  Wh.  181 ;  Vat- 
suit  was  brought  and  two  in  another  tier  v.  Ilinde,  7  Pet.  252;  Osborn  v. 
state,  it  was  held  that  the  court  could  Bank,  9  Wh.  738 ;  Harding  v.  Handy, 
not  rescind  the  contract  as  to  the  two  11  Wh.  132. 

and  allow  it  to  stand  as  to  the  four:  -  Barney  v.  Baltimore  City,  6  Wall. 

Shields  v.  Barrow,  17  How.  130.    See  280;  Shields  v.  Barrow,  17  How.  130. 

also  Mallow  v.  Hinde,  12  Wh.  193;  =*  Horn  v.  Lockhart,  17  Wall.  570: 

Cameron  v.  McRoberts,  3  Wh.  591 ;  Batesville  Institute  v.  Kauffman,  18 

Russell  V.  Clark,  7  Cr.  09.  And  the  ob-  Wall.  151. 


CIRCUIT    COURTS.  133 

causes.  The  provision  referred  to  should  have  been  incorporated 
into  the  section  for  the  removal  of  causes,  in  order  to  secure  the 
object  of  the  provision  in  the  first  section.^  The  Judiciary  Act  of 
1789  contained  a  provision  somewhat  similar  to  that  act,  providing 
that  the  circuit  courts  should  not  have  "  cognizance  of  any  suit  to 
recover  the  contents  of  any  promissory  note  or  other  chose  in  ac- 
tion, in  favor  of  an  assignee,  unless  the  suit  might  have  been  prose- 
cuted in  such  court  to  recover  the  contents  if  no  assignment  had 
been  made,  except  in  case  of  foreign  bills  of  exchange." 

This  provision  has  been  held  to  apply  only  to  rights  of  action 
founded  on  contracts  which  contain  within  themselves  some  promise 
to  be  fulfilled  or  duty  to  be  performed,  and  not  to  rights  of  action 
founded  upon  some  wrongful  act  or  neglect  of  duty  to  which  the 
law  attaches  damages,  even  though  based  upon  contract.^  It  has 
been  held  also  that  this  provision  does  not  apply  to  municipal  bonds 
or  attached  coupons,  where  they  are  payable  to  bearer  or  endorsed 
to  bearer,  as  they  pass  from  one  to  another  merely  by  delivery,  and 
without  the  necessity  of  a  formal  assignment.^  If  a  note  is  made 
payable  to  bearer  he  may  maintain  a  suit  on  it  in  the  circuit  court 
if  it  is  averred  that  he  and  the  maker  are  residents  of  different 
states,*  although  under  the  former  statute  it  was  essential  to  aver 
that  the  maker  was  a  citizen  of  the  state  where  the  suit  was  brought 
and  the  holder  a  resident  of  another  state.^  Where  a  suit  was  brought 
to  recover  damages  for  the  failure  of  the  defendants  to  take  the 
proper  steps  to  preserve  the  value  of  commercial  paper,  it  was  held, 
under  the  act  of  1789,  that  the  suit  was  not  one  for  the  purpose  of 
recovering  the  contents  of  a  promissory  note  or  other  chose  in  action, 
and  therefore  was  not  within  the  provisions  of  the  statute  limiting 
the  jurisdiction  of  the  court  in  suits  on  promissory  notes  or  other 
clioses  in  action.^  Under  the  provisions  of  the  Judiciary  A  ct  of  1789, 
the  assignee  of  a  chose  in  action  could  sue  thereon  in  the  circuit 
court  where  the  requisite  citizenship  of  the  parties  existed,  and  the 

^  Bushnell  v.  Kennedy,  9  Wall.  387.  where  there  was  an   assignment    by 

^  Bushnell  v.  Kennedy,  9  Wall.  387.  will,  the  representative  of  the  decedent 

^  City  of   Lexington  v.  Butler,  14  need  not  aver  the  citizenship  of  the 

AVall.  282.  maker  or  of  the  original  payee  of  a 

*  The  Pacific  R.  R.  Co.  v.  Ketchum,  note.     Chappdeleaine  c.  Dechenaux,  4 

101  U.  S.  298.  Cr.  306.    See  also  Seckel  v.  Backhaus, 

'  Strawbridge  v.  Curtiss,  3  Cr.  267  ;  7  Biss.  354. 

Moffat  V.  Soley,  2  Paine  103.     Under  «  Barney  v.  Globe  Bk.,  5  Blatch.  107. 

the  act  of    1789     it  was    held    that  See  also  Deshlerr.  Dodge,  16  How.  622. 


134  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

assignor  might  have  done  so  if  no  assignment  had  been  made, 
although  the  assignor  at  the  time  of  the  assignment  was  a  citizen 
of  the  same  state  with  the  maker.^  The  same  rule  would  be  appli- 
cable under  the  provisions  of  section  1  of  the  act  of  1875.  Under 
the  provisions  of  the  latter  act,  a  circuit  court  would  have  jurisdic- 
tion of  a  bill  to  foreclose  a  mortgage  given  to  secure  negotiable  notes 
of  the  mortgagor,  which  notes  and  mortgage,  by  written  assignment 
and  delivery,  came  into  the  hands  of  the  complainant,  he  being  a 
non-resident  of  the  state  where  the  suit  is  brought,  and  the  defend- 
ant a  resident  thereof,  although  the  original  payee  and  assignor 
could  not  by  reason  of  his  citizenship  have  brought  the  suit.^ 

Where  a  judgment  was  recovered  by  a  citizen  of  New  York 
against  a  citizen  of  Pennsylvania  in  the  state  court  of  the  latter 
state,  and  the  former  assigned  the  judgment  to  a  citizen  of  Penn- 
sylvania, whose  executors  assigned  it  to  an  alien,  it  was  held  that 
the  latter  could  maintain  a  bill  in  the  circuit  court  to  enforce  the 
judgment,  notwithstanding  the  intermediate  assignment  to  a  citizen 
of  Pennsylvania.^ 

The  assignee  of  a  common  chose  in  action  must  show  affirmatively 
by  his  pleading,  and,  if  controverted,  by  his  proofs  on  the  trial, 
that  the  obligee  could  have  maintained  the  suit  if  no  assignment 
had  been  made.* 

It  may  be  safely  affirmed  that  in  al  1  cases  of  suits  by  assignees 
upon  contracts  other  than  negotiable  promissory  notes  or  bills  of 
exchange,  it  is  sufficient  to  give  the  proper  circuit  court  jurisdiction, 
so  far  as  the  parties  are  concerned,  that  they  are  citizens  of  different 
states  and  that  the  original  assignor  could  have  maintained  an  action 
thereon  in  the  circuit  court  if  no  assignment  had  been  made  at  the 
time  of  the  commencement  of  the  suit  by  the  assignee.  If  the  payee 
resided  in  the  same  state  as  the  maker  of  a  non-negotiable  note  at 
the  ti  me  of  its  execution,  but  afterwards  removed  to  another  state, 
he  could  of  course  maintain  an  action  in  the  proper  circuit  court  if 
the  amount  involved  was  sufficient.  So  the  assignee  of  such  a  party 
could,  under  like  circumstances  of  citizenship,  maintain   an   action 

^  White  V.  Leahy,  3  Dill.  378.  payee  and  indorser,  who  are  residents 

'^  Seckel  v.  Backhaus,  7  Biss.  354.  of  the  state  wiiere  the  suit  is  brought, 

^  "VVilson   V.   Fisher's    Executors,   1  the  circuit  court  would  have  no  juris- 

Bald.  133  (1830).      See  also  Irvine  v.  diction:  Shufford  v.  Cain,  1  Abb.  302. 

Lowry,  14  Pet.  293  (1840).     Where  Keary  v.  Farmers'  Bank,  16  Pet.  89. 

the  suit  is  on  a  non-negotiable  prom-  ^  Bradley   v.   Rhines,  8  Wall.   393  : 

issory  note  by  a  non-resident  assignee,  Coal  Co.  v.  Blatchford,  11  Wall.  172. 

and     against     the    maker    and    the 


CIRCUIT    COURTS.  135 

thereon,  if  at  the  time  of  the  commencement  thereof  the  payee  could 
have  maintained  it,  and  it  would  not  affect  this  right  if  the  payee 
or  assignor  should  afterwards  become  a  resident  of  the  same  state 
as  the  maker.^ 

§  150.  Suits  by  indorsees. — It  is  evident  that,  under  the  existing 
statutes,  an  indorsee,  being  a  citizen  of  a  different  state  from  that 
of  an  indorser,  whether  of  a  promissory  note  negotiable  by  the  law 
merchant  or  a  bill  of  exchange,  could,  so  far  as  citizenship  is  con- 
cerned, maintain  q;n  action  against  the  indorser,  whether  a  suit 
could  be  maintained  by  the  assignee  or  the  payee  against  the  maker 
or  not.^ 

§151.  Corporations  citizens;  bonds  and  coupons  not  promissory 
notes  or  bills  of  exchange. — A  corporation  is  a  citizen  of  the  state 
where  it  is  created,  in  the  sense  of  the  statute  requiring  the  proper 
citizenship  of  parties  to  confer  jurisdiction  upon  the  federal  courts, 
it  being  conclusively  presumed  that  the  individual  members  of  it 
are  citizens  of  such  state.^  This  doctrine  is  applicable  to  both  pri- 
vate and  municipal  corporations.  Where  bonds  were  executed  by 
a  municipal  corporation,  with  coupons  attached,  to  a  railroad  cor- 
poration, and  both  corporations  were  created  by  and  located  in  the 
same  state,  and  the  bonds  and  coupons  were  transferred  to  the 
bearer  in  blank,  it  was  held  that  the  latter  could  not  sue  for  the 
recovery  of  their  contents  in  the  circuit  court,  as  such  instruments 
are  not  promissory  notes  negotiable  by  the  law  merchant,  nor  bills 
of  exchange,  and  the  payee  or  original  holder  could  not  maintain  a 
suit  thereon  in  said  court  for  the  want  of  jurisdiction  to  take  cog- 
nizance of  such  suits.*     But  in  such  a  case  the  action  could  be 

^  Chamberlain   v.   Eckert,    2    Biss.  227  ;  Railroad  Co.  v.  Harris,  12  Wall. 

126 ;  Thaxter  v.  Hatch,  6  McLean  68  65  ;  Railroad  Co.  v.  Whitton,  13  Id. 

(1869);  Kirkman  ?7.  Hamilton,  6  Pet.  270.     It  was  formerly  held  that  a  cor- 

20.     A  general  assignee  under  the  in-  poration  was  not,  in  the  sense  of  these 

solvent  laws  of  a  state  is  an  assignee  statutes,  a  citizen,  and  that  in  order 

within  the  meaning  of  the    statute,  to  confer  jurisdiction  in  such  cases  it 

and    he   cannot   sue   if   his   assignor  was  necessary  to  aver  and  prove  that 

could  not:  Bradford  w.  Jenks,  2  Mc-  all  the  members  of  it  had  the  requisite 

Lean  130  ;  Sere  v.  Pitot,  6  Cr.  332.  citizenship  :  Bank  of  U.  S.  v.  Deveaux. 

2  Young    V.    Bryan,    6    Wh.    146;  5  Cr.  84  (1809)  ;  Commercial  Bank  u. 

Evans  v.  Gee,  11  Pet.  80;   Coffee  v.  Slocomb,  14  Pet.  60  (1840)  ;  Ward  v. 

Planters'  Bank,  13  How.  183  ;  Mollan  Arredondo,  1  Paine  410. 

V.  Torrance,  9  Wh.  537.  *  Clark  v.  City  of  Janesville,  1  Biss. 

*  Louisville    R.    Co.    v.    Letson.   2  (C.  C.)  98.     See  also   Sheldon  w.  Sill, 

How.  497  (1844)  :    Marshal  v.  Balti-  8  How.  441  ;  Deshler  v.  Dodije,  16  Id. 

more,  etc.,  R.  Co.',  16  Id.  314;  Cov-  622;  Gibson  v.  Chew,    16  Pet.  315; 

ington,  etc.,  Co.  v.  Shepherd,  20  Id.  Dromgoole  v.  Farmers' and  Merchants' 


13t5  FEDERAL    PLEADINCJ,    PRACTICE    AND    PROCEDURE. 

commenced  in  a  state  court,  and  if  the  value  of  the  amount  in  con- 
troversy exceeded  five  hundred  dollars  it  might  be  removed  to  the 
proper  circuit  court,  as  it  would  be  between  citizens  of  different 
states.  This  would  appear  to  be  sufficient  cause  of  removal,  with- 
out regard  to  the  right  of  the  payee  or  original  holder  to  maintain 
an  action  thereon  in  the  circuit  court,  if  the  contract  had  not  been 
assigned ;  and  it  would  appear  that  the  circuit  court  would,  upon 
the  removal,  acquire  jurisdiction  of  the  suit. 

§  152.  Where  a  corporate  bond  is  payable  to  bearer. — If  a  corpo- 
rate bond  is  made  payable  to  bearer,  and  is  transferred  by  mere 
delivery,  and  not  by  a  written  endorsement  or  assignment,  the 
holder  is  not  an  assignee  within  the  meaning  of  the  statute;  and 
he  may  bring  suit  thereon  in  the  circuit  court  if  the  amount  is 
sufficient  and  there  is  the  requisite  citizenship  of  the  parties.^  The 
right  to  bring  suit  in  such  cases  in  the  state  where  the  plaintiff 
resides,  if  personal  service  can  be  made  on  the  non-resident  de- 
fendant therein,  is  authorized  by  the  provisions  of  the  first  section 
of  the  act  of  March  3,  1875. 

§  153.  Facts  showing  jurisdiction  must  be  averred. — The  circuit 
courts  of  the  United  States  have  no  powers  except  those  conferred 
by  acts  of  Congress.  There  are  no  presumptions  in  favor  of  their 
jurisdiction,  and  where  their  judicial  action  is  invoked,  the  facts 
upon  which  their  jurisdiction  rests  must  in  some  form  appear  in  the 
record.  This  doctrine  is  applicable  to  both  civil  and  criminal 
cases. ^  They  have  no  common  law  jurisdiction  of  criminal  cases, 
it  being  limited  to  that  conferred  by  acts  of  Congress,  and  they  can 
try  no  offences  except  such  as  are  made  so  by  said  acts.^ 

As  the  federal  courts  have  a  special  and  not  a  general  jurisdic- 
tion, and  there  can  be  no  presumption  of  jurisdiction,  it  is  necessary 
to  make  a  special  allegation  of  the  facts  required  to  give  the  court 

Bank,  2  How.  241  ;  Thomson  v.  Lee  484;  United  States  v.  Bevans,  3  Wh. 

County,  3  Wall.  327.     A  different  rule  336;  United  States  f.  Hudson,  7  Cr. 

prevails   where    no   assignment    has  32 ;    United    States  v.   Clark,   8    Pet. 

been    made:    City   of    Lexington   v.  444;   Briscoe    v.   Bank,   11    Cr.    321; 

Butler,  14  ^V"all.  283.  United    States   v.    Donlan,    5  Blatch. 

1  White  I'.  Railroad,  21  How.  275;  294;   Bank  of  the   United    States  v. 

Mercer   Co.  v.  Ilacket,  1  Wall.  830.  Deveaus,  5  Cr.  61;  Seldon  v.  Sill,  8 

See  also  Bonnafee  ?;.  AVilliams,  3  How.  How.    441;    Harrison    v.    Hadley,    2 

574  ;  White  v.  A'ermont  and  Mass.  K.  Dill.  229  ;  Hubbard  v.  Northern  11.  Co., 

Co.,  2  How.  575 ;  Halstead  v.  Lyon.  2  3  Blatch.  84. 

McLean  226  ;  Sackett  v.  Davis,  3  Mc-  ^  United  States  v.  Barney,  5  Blatch. 

Lean  101  (1842).  294. 

-  United  States  v.  Eckford,  6  Wall. 


CIRCUIT    COURTS.  137 

jurisdiction  in  each  particular  case.  Thus,  where  the  jurisdiction 
depends  upon  the  proper  citizenship  of  the  parties,  as  that  they  are 
citizens  of  different  states,  that  fact  should  be  distinctly  averred, 
and  the  particular  states  of  which  they  are  citizens  should  also  be 
alleged ;  ^  although  it  is  not  always  necessary  to  show,  under  the 
act  of  1875,  that  one  of  them  is  a  citizen  of  the  state  where  the 
suit  is  brought. 

In  case  a  partnership  is  a  party,  it  would  be  sufficient  to  aver 
that  it  is  a  firm,  the  members  of  which  are  citizens  of  a  different 
state  from  that  of  the  other  party  to  the  suit.  But  where  there  was 
an  averment  that  the  plaintiffs  were  a  firm  organized  to  carry  on  a 
banking  business  at  Omaha,  Nebraska  territory,  and  had  been  for 
eighteen  months  in  said  business  at  that  place,  it  was  held  that  this 
was  a  sufficient  averment  of  citizenship.^ 

As  a  general  rule,  however,  it  is  safer  to  aver  the  facts  consti- 
tuting the  proper  citizenship  of  the  parties  in  a  positive  and  distinct 
manner,  and  not  leave  it  to  be  inferred  argumentatively  from  the 
averments  of  the  declaration  or  bill.^ 

It  has  also  been  held  that  citizenship  and  residence  are  not 
synonymous  but  distinct  terms. ^  An  omission  to  aver  sufficiently 
the  proper  citizenship  of  the  parties  is,  however,  amendable;^  and 
if  the  defendant  makes  no  objection  to  the  want  of  a  proper  aver- 
ment of  it,  and  proceeds  to  trial,  the  Supreme  Court  will,  on  writ 
of  error,  grant  leave  to  amend  the  pleadings  in  this  respect.^ 

In  the  case  of  a  corporation,  its  citizenship  should  be  averred  to 
be  of  the  state  where  it  was  created,  and  it  would  not  be  necessary 
to  allege,  as  we  have  observed,  that  the  members  composing  it 
were  residents  of  such  state.^ 


Hornthall    v.    The    Collector,     9     the  plaintifiTs  ancestors  were  imported 
"  from  Africa  and  sold  as  slaves,  the 

plaintiff  could  not  be  a  citizen  of  a 
state,  and  was  not  entitled  to  sue  in 
that  character  in  a  circuit  court  of 
the  United  States. 

Express  Co.  v.  Kountz  Brothers,  8 


Wall.  560  ;  Mason  v.  Rollins,  13  Wall 

602 ;  Christmas  v.   Russell,    5  Wall 

290 ;  Bingham  v.  Cabot,  3  Dall.  382 

Turner  v.  Bank  of  America,  4  Dall 

8 ;    Gassees  v.  Ballou,    6    Pet.   761 

McDonald   v.   Smalley,    1    Pet.    623 

Jackson  v.  Twentyman,  2  Pet.  136  ;     Wall.  342, 

Eberly  v.  Moore,  24  How.  157  ;  Shel-        ^  Brown  v.  Keene,  8  Pet.  115. 

ton  V.  Tiffin,  6  How.  163  -,  Shepherd         *  Parker  v.  Oveirman,  18  How.  137  ; 

V.  Graves,  14  How.  393  ;   Wickliffe  v.     Railway  v.  Ramsey,  22  Wall.  322. 

Owings,  17  How.  47  ;  Dred  Scott  v.        *  Kelsey  v.    Pennsylvania   R.    Co., 

Sanfdrd,  19  How.  395.     In  the  latter     14  Blatch.  89. 

case  the  Supreme  Court  decided  that        ®  Robertson  v.  Cease,  97  U.  S.  646. 

as  it  appeared  from  the  record  that        '  See  ante,  §  151. 


138  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

An  averment  in  a  declaration  tliat  the  defendant  was  a  corpora- 
tion created  by  an  act  of  the  legislature  of  the  state  of  New  York, 
but  located  and  doing  business  in  Aberdeen,  in  the  state  of  Missis- 
sippi, under  the  laws  of  that  state,  was  held  to  be  insufficient  as  an 
averment  that  the  corporation  was  a  citizen  of  Mississippi,  where 
the  suit  was  brought,  but  was  in  legal  effect  an  averment  that  the 
defendant  was  a  citizen  of  the  state  of  New  York.^ 

§  154.  Implied  and  resulting  powers. — While  the  federal  courts 
have  a  limited  and  restricted  jurisdiction,  the  mode  of  practice  and 
procedure  may  conform  to  the  rules  of  the  common  law  or  chan- 
cery practice ;  and  they  have  certain  implied  powers  necessarily 
resulting  from  their  institution.  Thus  they  have  power  to  punish 
for  contempt  and  contumacy,  and  to  enforce  the  observance  of 
order,  as  these  are  necessary  to  the  exercise  of  those  powers 
expressly  conferred.^ 

§  155.  A  statute  covering  the  subject  of  a  former  one  is  substitu- 
ted therefor. — We  have  already  alluded  to  the  construction  of  stat- 
utes where  two  or  more  refer  to  the  same  subjects.  In  such  a  case, 
if  the  objects  are  not  the  same,  they  may  all  be  valid  and  stand. 
But  if  the  whole  subject  of  former  statutes  is  covered  by  a  subse- 
quent one,  and  the  mode  of  practice  or  procedure  is  varied  by  the 
latter,  it  operates  by  way  of  substitution,  and  repeals  all  the  former 
ones  on  the  same  subjects.^  This  doctrine  would  seem  to  be  appli- 
cable in  the  construction  of  the  first  and  second  sections  of  the  act 
of  1875,  relating  to  the  jurisdiction  of  the  circuit  courts  and  the 
removal  of  causes  thereto  from  the  state  courts.  The  provisions 
of  the  Revised  Statutes  conferring  original  jurisdiction  upon  the 
circuit  courts  and  providing  for  the  removal  of  causes  there  from 
state  courts  would  appear  to  be  repealed  by  implication  by  the  act  of 
1875. 

^  Insurance    Company   v.    Francis,  United  States  w.  Coolidife,  1  Wh.  415  ; 

11    Wall.    210.     See   also  Covington,  1  Gallison  4S8  ;  United  States  f.  Bev- 

etc,  Co.  V.  Shepherd,  20  How.  227  ;  ans,  3  Wh.  336. 

Manufacturing  Co.  v.  Brack,  8  Blatch.  ^  United  States  v.  Claflin,  97  U.  S. 

137.  546.     So  where  the  jurisdiction  of  a 

As  to  the  case  of  joint  stock  com-  suit  depends  upon  a  statute,  a  repeal 

panics  not  fully  possessed  of  corporate  of  the  statute  during  the  pendency  of 

powers,    see    Liverpool    Ins.    Co.    v.  it  takes  away  the  jurisdiction  :  Insur- 

Massachusetts,  10  Wall.  506  ;  Penn-  ance  Co.  v.  Ritchie,  5  Wall.  541 ;  Phila- 

sylvania  v.  Quicksilver,  etc.,  Co.,   10  delphia  v.  The  Collector,  5  Wall.  720; 

Wall.  553  ;  Waltz  v.  Am.  Ex.  Co.,  3  Hornthall  v.  The  Collector,  9  Wall. 

Cent.  Law  .Jour.  157.  561  ;    The    Assessors   v.   Osborne,    9 

2  United  States  v.  Hudson,  7  Cr.  52 :  Wall.  567. 


CIRCUIT    COURTS.  139 

§  156.  Suits  under  import,  revenue  and  postal  la-ws,  and  for  the 
enforcement  of  penalties  and  the  condemnation  of  property. — iue 
act  of  1875,  like  the  previous  statutes,  provides  for  the  jurisdiction 
of  the  circuit  courts  in  all  suits  of  a  civil  nature  where  the  amount 
or  value  in  controversy  exceeds  five  hundred  dollars,  and  arising 
under  the  laws  of  the  United  States.  This  includes  all  suits  aris- 
ing under  any  act  of  Congress,  "providing for  revenue  from  imports 
or  tonnage,"  and  "all  causes  arising  under  any  law  providing  in- 
ternal revenue,"  and  "all  causes  arising  under  the  postal  laws." ^ 
Cognizance  may  be  taken  by  the  circuit  courts  of  such  cases,  with- 
out regard  to  the  citizenship  or  character  of  the  parties,  as  well  as 
of  suits  under  statutes  for  the  enforcement  of  penalties,^  and  the 
condemnation  of  property  taken  as  prize  if  used  for  insurrectionary 
purposes.^  Under  the  provisions  of  the  act  of  August  6,  1861,  re- 
lating to  prizes,  of  which  our  present  statute  is  a  substantial  copy, 
the  questions  presented  to  the  Supreme  Court  were  whether  the  cir- 
cuit courts  had  jurisdiction  of  such  prizes  taken  on  land  ;  what  the 
proper  pi'acticeand  procedure  in  such  a  case  should  be;  and  whether 
the  statute  covered  both  personal  and  real  property.  It  was  held  that 
the  act  covered  all  descriptions  of  property,  both  real  and  personal, 
on  land  or  on  water ;  that  the  circuit  court  had  jurisdiction  under 
the  statute  of  proceedings  to  condemn  property  on  land,  including 
real  estate;  and  that  the  procedure  in  such  cases  might  be  in  general 
conformity  with  the  practice  in  admiralty,  but  not  to  the  extent  of 
preventing  parties  from  having  a  jury  to  try  issues  of  fact,  in  this 
respect  differing  from  the  strict  course  of  admiralty  practice.* 

§  157.  Suits  for  the  enforcement  of  liens  or  the  removal  of  incum- 
brances.— Provision  is  made  by  the  eighth  section  of  the  act  of  March 
3,  1875,  for  suits  to  enforce  liens  upon  or  claims  to,  "or  to  remove 
any  incumbrance  or  lien  or  cloud  upon  the  title  to  real  or  per- 
sonal property  within  the  district  where  such  suit  is  brought," 
where  one  or  more  of  the  defendants  is  not  an  inhabitant  of  the  dis- 
trict, nor  found  therein,  and  shall  not  voluntarily  appear  thereto. 
This  provision  gives  a  more  extended  and  complete  remedy  to  the 
plaintiff  in  these  particular  cases.^ 

'  Rev.  Stat.  |  629,  sub.  4.  The  Vengeance,  3  Dall.    As  to  effect  a 

^  Rev.  Stat.  |  629,  sub.  5.  pardon  in   such   a    case,     see    Arm- 

Md.  sub.    6;    Rev.   Stat.   ^§   5308,  strong's  Foundry,  6  Wall.  766;    Ex 

5309.  imrte  Garland,  4  Wall.  380  ;    Morris" 

*  Union  Ins.  Co.  v.  U.   S.,  6  Wall.  Cotton,  8  Wall.  507. 

759.     See  also  The  S%rah,  8  Wh.  394 ;  ^  See  ante,  I  145. 


140  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

The  first  section  of  this  act,  among  other  things,  provides:  "No 
civil  suit  shall  be  brought  before  either  of  said  courts  [circuit  or 
district]  against  any  person  by  any  original  process  or  proceeding 
in  any  other  district  than  that  whereof  he  is  an  inhabitant,  or  in 
■which  he  shall  be  found  at  the  time  of  serving  such  process  or  com- 
mencing such  proceedings,  except  as  hereinafter  provided."  And 
section  10  provides:  "That  all  acts  and  parts  of  acts  in  conflict 
with  the  provisions  of  this  act  are  hereby  repealed."  Now  it  is 
evident  that  this  act  repeals  section  737  of  the  Revised.  Stat- 
utes, and  limits  the  coo-nizance  of  these  courts  to  suits  where  the 
defendant  is  an  inhabitant  of  the  district  where  the  suit  is  brought, 
or  in  which  he  shall  be  found  at  the  time  of  serving  the  process  or 
commencing  the  proceedings,  except  as  provided  by  the  eighth  sec- 
tion of  said  act. 

§  158.  Suits  for  seizure  under  the  slave-trade  laws. — The  Circuit 
courts  have  jurisdiction  of  all  suits  arising  under  the  laws  relating 
to  the  slave-trade.  This  jurisdiction  was  conferred  by  an  act  of 
Congress  as  early  as  1794.-^  The  cognizance  of  such  cases  is  vested 
exclusively  in  the  federal  courts,  and  the  state  courts  could  not 
exercise  jurisdiction  therein.^  Under  the  original  statute  on  this 
subject,  it  was  held  that  the  court  of  the  district  where  the  original 
seizure  was' made,  or  where  the  property  was  first  carried  and  pro- 
ceeded against  if  it  was  seized  upon  the  high  seas,  had  jurisdiction 
of  the  case.^  And  under  the  act  of  1791,  which  provided  for  the 
seizure  of  a  vessel,  in  case  of  preparing  to  sail,  or  causing  her  to 
sail,  for  the  purpose  of  embarking  in  the  slave-trade,  it  was  held 
that  it  was  not  necessary  that  the  vessel  should  be  completely  fitted 
out  and  ready  for  saijing  before  the  right  of  seizure  attached,  but 
that  it  was  sufficient  if  the  preparations  had  proceeded  so  far  as  to 
manifest  an  intention  to  sail  in  violation  of  the  statute.* 

§  159.  Suits  arising  under  the  patent  and  copyright  laws. — All 
suits  arising  under  the  patent  or  copyright  laws  of  the  United 
States  must  necessarily  be  originally  instituted  in  the  circuit 
courts.     Their  jurisdiction  is  exclusive,^  and  state  courts  can  take 

1  Act  of  March  22,  1794,  c.  11,  I  1,  Rev.  Stat.  I  730;  U.  S.  v.  Jackalow, 
V.  1,  p.  347.  1  Black.  484. 

2  Dred  Scott  u.  Sanford,  19  How.  "The  Emily,  9  Wh.  381  (1824). 
393.  See  also  U.  S.  Const.,  art.  1,  See  also  The  Wanderer,  Sprague  515; 
§  9 ;  act  of  March  3,  1819;  xMay  10,  The  San  Jago,  9  Wh.  409. 

isOO;  and  January  1,  1808.  ^  Rev.  Stat.  I  711,  sub.  5. 

3  The  xMerino,  9  Wh.  391.     See  also 


CIRCUIT   COURTS.  141 

no  cognizance  of  such  cases.  The  subject-matter  confers  the  juris- 
diction upon  the  federal  courts  in  such  cases,  and  the  citizenship  of 
the  parties  is  quite  immaterial;  but  it  would  be  necessary  to  make 
service  of  original  process  in  the  district  where  the  suit  is  brought.' 

If,  however,  the  controversy  does  not  arise  out  of  patent  or  copy- 
right laws,  or  depend  upon  a  construction  of  them,  but  on  a  con- 
tract of  assignment  of  a  patent  or  copyright,  or  an  interest  in  it, 
the  circuit  courts  would  have  no  exclusive  cognizance  of  it ;  ^  and 
their  jurisdiction  in  such  a  case  would  depend  entirely  upon  the 
proper  citizenship  of  the  parties.  Thus,  when  a  suit  was  brought 
by  a  patentee  in  a  circuit  court  on  a  contract  governing  the  rights 
of  the  parties  to  the  use  of  a  patented  invention,  and  the  defendant 
admitted  the  validity  of  the  patent  and  his  use  of  the  same,  the 
Supreme  Court  held  that  the  circuit  court  had  no  jurisdiction  of  the 
suit,  on  the  ground  of  the  subject-matter  of  it,  and  as  the  suit 
was  between  citizens  of  the  same  state  the  circuit  court  had  no 
right  to  take  cognizance  of  the  case.^  So,  where  a  bill  was  filed 
for  the  specific  performance  of  a  contract  for  the  transfer  of  an 
interest  in  a  patent-right,  it  was  held  this  was  not  alone  sufficient 
to  give  the  court  jurisdiction.* 

This  doctrine  would  of  course  apply  to  contracts  relating  to  the 
use  of  a  copyright.  Thus,  where  an  author  made  a  contract  with 
certain  publishers  by  which  he  gave  them  the  exclusive  right  to 
print  a  manuscript  and  publish  and  sell  the  same,  for  which  the 
latter  was  to  pay  the  author  a  fixed  sum  for  each  copy  of  the  work 
sold,  and  with  the  assent  of  the  author  the  publishers  secured  the 
copyright  to  the  same  in  their  own  names ;  and  afterwards  the 
author  revised  the  work,  and  secured  the  copyright  of  the  revised 
edition  in  his  own  name,  and  sought  to  restrain  the  publishers  from 
further  sales  of  the  work  by  an  injunction  from  the  circuit  court,  it 
was  held  that  the  subject-matter  did  not  give  the  circuit  court  juris- 
diction, as  the  suit  was  not  based  upon  the  copyright  laws  of  the 
United  States,  but  upon  a  contract  made  between  the  parties.^ 

1  Act  of  1875,  §  1 ;  Allen  v.  Blunt,  ^  Ilartzel   v.    Tilghman,    99    U.   S. 

1  Blatch.  480;  Ogle  ??.  Ege,  4  Wash.  547. 

584.  *  Burr    v.    Gregory,   2    Paine   420 

MVilson  V.  San  ford,  10  How.   99;  (1827). 

Hartshorne    v.    Day,   19  How.    211;  ^  Pulte  v.   Derby,  5    McLean    328 

Goodyear  v.  The  Union  Rubber  Co.,  (1852).        See    also    Boucicault     v. 

4    Blatch.  63;    Goodyear   v.    Day,   1  Hart,  13  Blatch.  47.      See  also  Bou- 

Blatch.  565.  cicault  v.  Fox,  5  Blatch.  97;  Bartlett 


142  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

In  case,  however,  the  whole  interest  in  a  patent,  or  the  right  in 
certain  territory  of  the  United  States,  is  duly  assigned  and  recorded 
under  the  provisions  of  the  patent  laws,  the  assignee  may  sue  for 
infringement  of  the  same,  and  a  circuit  court  could  entertain  juris- 
diction of  the  same  on  the  ground  of  the  subject-matter  without 
regard  to  the  citizenship  of  the  parties,^  and  restrain  by  injunction 
such  infringements.^ 

But  if  a  claim  for  damages  is  made,  and  an  injunction  is  asked 
to  restrain  an  alleged  infringement  of  a  patent-right  or  copyright, 
whether  by  the  patentee  or  author  or  by  his  assignee,  and  the 
defendant  denies  the  originality  of  the  invention  or  authorship,  or 
affirms  that  the  patent  was  made  broader  than  the  invention  of  the 
patentee,  the  controversy  would  be  one  arising  under  the  patent  or 
copyright  laws  of  the  United  States,  and  the  subject-matter  would 
give  the  circuit  courts  jurisdiction.^ 

It  may  be  observed  that  the  circuit  courts  always  exercise  their 
discriminating  power  in  granting  or  refusing  injunctions  to  restrain 
the  sale  or  use  of  inventions,  before  a  judgment  has  at  law  been 
had  sustaining  the  patent  thereto,  and  in  all  such  cases  the 
infringement  should  be  made  clear  and  palpable  before  an  injunc- 
tion is  allowed.* 

It  may  be  proper  here  to  observe  that  Congress  has  the  exclu- 
sive power  to  legislate  on  the  subject  of  patents,  and  a  state  cannot 
impose  any  restrictions  upon  the  right  of  a  patentee  to  sell  his 
invention.^ 

§  160.  Suits  by  and  against  national  banks. — Associations  for 
the  purpose  of  carrying  on  banking  business  under  the  statutes  re- 
lating thereto  mav  sue  and  be  sued  in  the  circuit  courts  of  the 
United  States.  But  their  jurisdiction  is  not  exclusive,  as  it  is  ex- 
pressly provided  by  the  fifth  subdivision  of  section  5136  of  the 
Revised   Statutes  that  when  such  associations  are  duly  organized 

V.  Crittenden,  4  McLean   300;    and  dence    Rubber    Co.,    2    Fisher    Pat. 

Fulsom  V.  Marsh,  2  Story  113,  as  to  Cases  499;  Burr  v.  Durgee,  1  Wall. 

authority  of  circuit  courts  to  restrain  531 ;  0' Riley  v.  Morse,  15  How.  112  ; 

by  injunction  unauthorized  publica-  Battin  v.  Taggart,  17  How.  74. 

tions  where  they  have  jurisdiction.  *  Cochrane  v.  Duner,  94  U.  S.  780  ; 
1  Littlefield  t\  PerryJ  21  Wall.  205.  Burleigh  Rock  Drill  Co.  v.  Lobdell,  1 
*  Brown  v.  Shannon,  20  How.  56;  Holmes  450;  Guttapercha  Co.  r.  Good- 
Day  V.  Hayward,  20  How.  208.  year  Co.,  3  Saw.  542. 

^  Potter    V.    Muler,   2  Fisher  Pat.  *  McClurg  v.    Kingsland,   1    How. 

Cases  465  ;  Potter  v.  Wilson,  2  Fisher  206  ;  Blanchard  v.  Sprague,  3  Sum. 

Pat.  Cases  102 ;  Goodyear  v.  Provi-  279 ;  Payne  v.  Hook,  7  Wall.  425. 


CIRCUIT   COURTS.  143 

under  the  provisions  of  the  statutes  they  may  "  sue  and  be  sued, 
complain  and  defend,  in  any  court  of  law  and  equity  as  fully  as 
natural  persons."  They  may  therefore  sue  or  be  sued  in  any 
state,  county  or  municipal  court,  in  the  county  or  city  where  they 
are  located,  having  jurisdiction  of  similar  cases  between  natural 
persons,  unless  there  is  some  special  provision  of  statute  to  the 
contrary.^  But  a  national  bank  cannot  be  sued  in  a  federal  court 
outside  the  district  where  it  is  located.^  Corporations  are  residents 
of  the  state  and  district  where  they  are  located  and  established.^ 

§  161.  Suits  by  receivers  of  national  banks. — Before  a  receiver  of 
a  national  bank  can  be  appointed  under  the  National  Banking  Act, 
on  the  ground  of  the  failure  of  the  bank  to  pay  its  notes,  it  re- 
quires certain  action  on  the  part  of  the  Comptroller  of  the  Cur- 
rency ;  *  and  in  any  action  by  a  receiver  against  the  stockholders 
of  a  bank  to  enforce  their  personal  liability  as  provided  by  the  statute, 
it  is  necessary  that  he  aver  in  his  bill  this  preliminary  action  on 
the  part  of  the  Comptroller ;  but  a  receiver  can  sue  as  such  in  the 
circuit  courts  without  regard  to  his  citizenship ;  ^  and  he  may  sue 
for  demands  due  the  bank,  either  in  his  own  name  or  in  the  name  of 
the  bank,  without  any  order  of  the  Comptroller  of  the  Currency  so 
to  do.  But  it  has  been  held  that  a  state  court  has  no  jurisdiction 
of  a  suit  by  a  creditor  against  a  receiver  of  a  national  bank,  duly 
appointed  after  the  insolvency  of  a  bank,  to  recover  a  debt  alleged 
to  be  due  from  the  bank  to  him,  and  that  the  circuit  courts  of  the 
United  States  have  exclusive  jurisdiction  of  such  cases.^  The 
power  of  the  Comptroller  of  the  Currency  to  proceed  in  the  circuit 

^  Bank  of  Bethel  v.  Pahquioque,  14         ^  Day  v.  Newark  Ind.   Rub.  Man. 

Wall.  383 ;  Pittilon  v.  Noble,  7  Biss.  Co.,  1  Blatch.  628  ;  Pomroy  v.  N.  Y. 

450.     They  may  sue  in   the  federal  &  N.  H.  R.  Co.,  4  Blatch.  120.     See 

courts   and  enjoin    the    collection  of  ante,  ?  151. 
state  and  county  taxes  levied  upon  its        *  Rev.  Stat.  §|  5226,  5227. 
capital :  First  Nat.  Bank  of  Omaha         ^  Kennedy  v.  Gibson,  8  Wall.  498. 
V.  County  of  Douglas,   3   Dill.  298  ;        «  National  Bank  v.  Colby,  21  Wall. 

City  Nat.  Bank  v.  Paducah,  3  Cent.  609.     But  vrhere  the  bill  presented  a 

L.  -J.  347.  question    of    property    between    the 

2  Main  v.  Second  Nat.  Bank  of  Chi-  plaintiff  and  receiver,   and   they  re- 

cago,  6  Biss.  26.     But  in  other  cases,  sided   in  the  same  state,   the   circuit 

at   least  under  the   act  of  March  3,  court  held  it  had  no  jurisdiction:  Van 

1875,  it  is  no  lonjjer  necessary  that  Antwerp  v.  Hulbard,  8  Blatch.  282. 

one  of  the  parties  should  be  a  citizen  See  also  Cadle  v.  Tracy,   11  Blatch. 

of  the  state  where  the  suit  is  brought:  101;    In  re  Manufacturers'   Bank,   5 

Osgood.  V.   Chicago,    etc.,   R.    Co.,    6  Biss.    499 ;   Irons   v.    Manufacturers' 

Biss.  330;  Pacific  R.  Co.  v.  Ketchum,  Bank,  6  Biss.  301. 
101  U.  S.  298. 


144  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

court  to  wind  up  a  national  bank  in  certain  contingencies,  and  to 
appoint  a  receiver  therefor,  does  not,  however,  exclude  the  authority 
of  other  competent  tribunals  to  appoint  a  receiver  in  other  cases. ^ 
But  the  circuit  court  has  no  jurisdiction  of  a  suit  by  a  private 
person  to  control,  restrain  or  interfere  with  the  official  action  of 
the  Treasurer  or  Comptroller  of  the  Currency  in  respect  to  bonds 
deposited  to  secure  the  redemption  of  the  circulating  notes  of 
banks. ^  It  may,  however,  take  cognizance  of  a  suit  by  a  stock- 
holder to  enjoin  the  officers  of  a  national  bank  from  any  applica- 
tion of  its  funds  not  authorized  by  its  charter,  or  which  would 
amount  to  a  breach  of  trust  if  there  is  the  requisite  citizenship  of 
the  parties.^ 

§  162.  Suits  to  redress  the  deprivation  of  rights. — Under  the  act 
of  1875  the  circuit  courts  would  have  cognizance  of  all  suits  insti- 
tuted "  by  any  persons  to  redress  the  deprivation  under  color  of 
any  law,  statute,  ordinance,  regulation,  custom  or  usage  of  any 
state,  of  any  right,  privilege  or  immunity  secured  by  the  Constitu- 
tion of  the  United  States,  or  by  any  law  of  the  United  States  pro- 
viding for  equal  rights  of  citizens  of  the  United  States,  or  of  all 
persons  within  the  jurisdiction  of  the  United  States,"*  as  such  suits 
would  be  those  arising  under  the  Constitution  or  laws  of  the  United 
States.^  The  powers  of  the  federal  courts  under  this  provision 
have  mainly  been  invoked  to  redress  the  wrongs  of  colored  persons, 
whose  equal  rights  were  undoubtedly  intended  to  be  secured  by  the 
statutory  provisions  referred  to  in  the  notes. ^ 

§  163.  Appellate  jurisdiction  of  the  circuit  courts. — The  Statute 
provides  for  an  appellate  jurisdiction  of  the  circuit  courts:  "From 
all  final  decrees  of  a  district  court  in  causes  of  equity  or  of  admi- 
ralty jurisdiction,  except  prize  causes,  where  the  matter  in  dis- 
pute exceeds  the  sum  or  value  of  fifty  dollars  exclusive  of  costs,  an 
appeal  shall  be  allowed  to  the  circuit  court  next  to  be  held  in  such 
district,  and  such  circuit  court  is  required  to  receive,  hear  and 
determine  such  appeal." '^ 

^  Irons  V.  Manufacturers'  Bank,  6  *  Rev.  Stat.  |  629,  sub.  16. 

Biss.  301.  s  Rev.  Stat.  M  «'^8.  1977,  1979. 

2  YanAntwerpu.  Hulbard,7Blatcli.  «  Act  of  May  31,  1870,  and  March 

426;  s.  c,  SBlatch.  282.         _  1,  1875. 

'^  Shoemaker  I'.  The  Mechanics'  Nat.  ''  Rev.  Stat.  |  637. 
Bank,  2  Abb.  (U.  S.)  416  ;  Dodge  v. 
Woolsey,  18  How.  341. 


CIRCUIT    COURTS.  145 

§  164.  The'decree  must  be  a  final  one. — The  decree  of  the  district 
court  must  be  a  final  one  or  the  circuit  court  cannot  act  upon  it,  as 
it  would  have  no  jurisdiction  ;  and  it  should  appear  in  the  record 
brought  up  on  appeal  that  the  decree  was  final.  Even  the  consent 
of  counsel  to  the  insertion  of  a  final  decree,  and  an  amendment  of 
the  record  to  that  effect,  will  not  suffice  to  give  the  circuit  court 
jurisdiction  in  such  cases. ^  Where  a  district  court  sitting  in  admi- 
ralty adjudged  that  a  sum  of  money  was  due,  but  the  amount  could 
not  be  determined,  as  it  depended  upon  other  claims  that  might  be 
established,  and  no  order  could  be  made  for  the  payment  of  money 
from  the  fund  in  court  until  it  should  be  further  advised,  this  was 
held  not  to  be  a  final  decree  that  would  confer  appellate  jurisdiction 
on  the  circuit  court. ^ 

§  165.  It  must  be  a  cause  of  equity  or  of  admiralty  or  maritime 
jurisdiction  ;  -when  an  appeal  •will  be  dismissed. — To  authorize  an 
appeal  the  cause  must  be  of  equity  or  of  admiralty  jurisdiction, 
except  it  be  a  prize  cause.  If  the  cause  belongs  to  the  law  side  of 
the  court  it  can  only  be  reviewed  by  a  writ  of  error.  Thus,  where 
property  was  seized  on  land  and  libelled  as  forfeited  to  the  United 
States  for  a  violation  of  the  revenue  laws,  it  was  held  that  the  cause 
belonged  to  the  law  side  of  the  court,  and  that  the  circuit  court,  to 
which  it  was  appealed,  could  not  entertain  jurisdiction.^ 

The  appeal  must  be  taken  to  the  next  term  of  the  circuit  court 
to  be  held  in  the  district  after  the  rendering  of  the  decree  by  the 
district  court.     If  not  so  taken,  it  will  be  dismissed.^ 

§  165.  Jurisdiction  on  error  to  judgments  of  district  courts. — The 
circuit  courts  have  also  jurisdiction  of  civil  actions  to  re-examine 
the  judgments  of  the  district  courts  on  writs  of  error.  In  such  a 
case  the  judgment  of  the  district  court  must  be  a  final  one;  the 
matter  in  dispute  must  exceed  the  sum  or  value  of  fifty  dollars 
exclusive  of  costs ;  and  it  can  only  be  reviewed  by  a  circuit  court 
holden  in  the  same  district.  The  judgment  below  may  be  either 
reversed  or  affirmed  by  the  circuit  court  ;^  or  it  may  modify  the 
judgment,  decree  or  order,  or  direct  such  judgment,  decree  or  order 

1  Mordecaiw.  Lindsay,  19  How.  199.  *  U.S.r. $5100  in  Specie,]  Woods  14. 

^  Montgomery  t).  Anderson,  21  How.  ^  Rev.  Stat.  |  633.    The  circuit  court 

386.  for  the  three  districts  of  Alabama  can 

^  United  States  v.  Thirty-seven  Bar-  exercise  appellate  and  revisory  juris- 

rels   of  Rum,  1    Woods    19;    United  diction  of  the  decrees  and  judgments 

States   V.    Haynes,   2    McLean    155;  of  the  district  courts  of  said  districts  : 

United  States  v.  Wonson,  1  Gallis.  5.  Id.  |  634. 

10 


146  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

to  be  rendered,  or  such  further  proceedings  had  by  the  district  court, 
as  the  justice  of  the  case  may  require.^  But  the  statute  provides 
that  "  no  judgment,  decree  or  order  of  the  district  court  shall  be 
reviewed  in  a  circuit  court  on  writ  of  error  or  appeal,  unless  the 
writ  of  error  is  sued  out  or  the  appeal  taken  within  one  year  after 
the  entry  of  such  judgment,  decree  or  order,"  except  where  the 
party  entitled  thereto  is  an  infant,  or  non  compos  mentis,  or  im- 
prisoned, in  which  case  the  appeal  may  be  taken  or  the  writ  of 
error  prosecuted  within  one  year  after  the  removal  of  the  disability.^ 
Under  a  similar  exception  limiting  the  time  of  bringing  a  writ  of 
error  or  the  taking  of  an  appeal  for  review  in  the  Supreme  Court, 
of  a  judgment,  decree  or  order  of  a  circuit  or  district  court  in  a  civil 
action,^  it  has  been  held  that  the  statute  did  not  run,  during  the 
war  of  the  rebellion,  against  a  non-resident  of  a  rebellious  state  in 
favor  of  a  resident.* 

§  167.  Jurisdiction  in  cases  transferred  from  the  district  courts  on 
account  of  the  disability  of  the  judge. — The  statute  also  provides  for 
the  removal  of  causes  from  the  district  to  the  circuit  courts,  where 
the  district  judge  is  disabled,  or  interested  in  the  suit,  or  has  been 
of  counsel  for  either  party,  or  is  related  to  either  party .^  In  such 
cases  the  circuit  court  may  take  cognizance  of  the  cause  if  properly 
certified  to  it,  whether  civil  or  criminal,  or  of  whatever  nature,  in 
the  same  manner  as  it  might  have  done  if  the  same  had  originally 
and  lawfully  commenced  therein.^ 

§  168.  Always  open  for  certain  purposes. — It  may  be  well  to  ob- 
serve, in  this  connection,  that  the  circuit  courts,  as  courts  of  equity, 
are  always  open  for  the  purpose  of  filing  any  pleading,  of  issuing 
and  returning  mesne  and  final  process,  and  of  making  and  directing 
all  interlocutory  motions,  orders,  rules  and  other  proceedings  pre- 
paratory to  a  hearing  upon  their  merits  ;  and  any  judge  of  the  court 
may,  upon  reasonable  notice  to  the  parties,  at  chambers  or  at  the 
■clerk's  ofiice,  and  in  vacation  as  well  as  in  term  time,  make,  direct 
and  award  all  such  process,  commissions,  orders,  rules  and  other 
proceedings,  whenever  they  are  not  grantable  of  course,  according 
to  the  rules  and  practice  of  the  court.^ 

1  Rev.  Stat.  U  634,  636.  Hanger  v.  Abbott,  6  Id.  532. 

■'  Rev.  Stat.  |  635  ;  Sedgwick  v.  Fri-  ^  Rev.  Stat.  ||  587,  588. 

^ienburgh,  11  Blatch.  77.  *  Rev.  Stat.  I  637.     See  also  ||  587, 

3  Rev.  Stat.  §  1008.  601. 

*  The     Protector,     9    Wall.    687  ;  '  Rev.  Stat.  §  638. 


CIRCUIT    COURTS.  147 

§  169.  Causes  for  removal  of  suits  from  state  courts  jurisdiction. — 
Bv  the  provisions  of  various  acts  of  Congress  adopted  since  the 
Judiciary  Act  of  1789  the  jurisdiction  of  the  circuit  courts  has  been 
enlarged  and  their  business  has  been  thereby  greatly  increased.  This 
is  largely  owing  to  the  liberal  provisions  therein  made  for  the 
removal  of  causes  from  the  state  courts.  The  act  of  March  3,  1875, 
provides  :  "  That  any  suit  of  a  civil  nature  at  law  or  in  equity,  now 
pending  or  hereafter  brought  in  any  state  court,  where  the  matter 
in  dispute  exceeds,  exclusive  of  costs,  the  sum  or  value  of  five  hun- 
dred dollars,  and  arising  under  the  Constitution  or  laws  of  the  United 
States,  or  treaties  made  or  which  shall  be  made  under  their  authority, 
or  in  which  the  United  States  shall  be  plaintiff  or  petitioner,  or  in 
which  there  shall  be  a  controversy  between  citizens  of  different 
states,  or  a  controversy  between  citizens  of  the  same  state  claiming 
lands  under  grants  of  different  states,  or  a  controversy  between  citi- 
zens of  a  state  and  foreign  states,  citizens  or  subjects,  either  party 
may  remove  said  suit  into  the  circuit  court  of  the  United  States  for 
the  proper  district ;  and  when  in  any  suit  mentioned  in  this  section 
there  shall  be  a  controversy  which  is  wholly  between  citizens  of 
different  states,  and  which  can  be  fully  determined  as  between  them, 
then  either  one  or  more  of  the  plaintiffs  or  defendants  actually  inter- 
ested in  such  controversy  may  remove  said  suit  to  the  circuit  court 
of  the  United  States  for  the  proper  district."^ 

This  phraseology  is  similar  to  the  first  section  of  said  act,  and 
follows  the  language  of  the  Constitution  on  the  same  subject.^  If, 
therefore,  a  circuit  court  may  take  original  cognizance  of  suits  for 
any  of  the  causes  mentioned  in  the  first  section  of  the  act,  for  the 
same  causes  may  suits  be  removed  from  a  state  court  to  the  proper 
circuit  court,  where  the  suits  are  originally  commenced  in  a  state 
court.  In  fact,  as  we  have  noticed,  there  would  appear  to  be  author- 
ity to  take  cognizance  of  certain  suits  on  removal,  that  could  not 
originally  be  brought  in  the  circuit  courts,  as  in  case  of  a  suit  founded 
upon  contract,  other  than  a  promissory  note  negotiable  by  the  law 
mei-chant  or  bill  of  exchange,  brought  by  an  assignee  of  the  same. 
In  such  a  case  the  circuit  court  could  have  no  cognizance  of  the 
suit  unless  it  could  have  been  brought  in  that  court  to  recover  there- 
on if  no  assignment  had  been  made.  But  a  suit  on  such  a  contract 
may  be  brought  in  a  state  court,  and  on  a  proper  application,  and 

1  Act  March  3,  1875,  ch.  137,  §  2 ;        ^  Removal  Cases,  100  U.  S.  457. 
18  Stat.  L.  471. 


148  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

for  any  of  the  causes  mentioned  in  section  2  of  the  act,  •which 
makes  no  exception  of  suits  founded  on  common  contract,  it  could 
perhaps  be  properly  removed  to  the  proper  circuit  court.* 

As  the  conditions  and  causes  for  removal  are  similar  to  those 
giving  original  jurisdiction  to  the  circuit  courts  in  civil  cases,  it  is 
manifest  that  decisions  construing  the  statute  and  determining  its 
application  in  one  class  of  cases  ^vould  be  equally  applicable  to  the 
other. 

§  170.  Two  classes  of  causes  for  removal. — It  will  be  observed 
that  there  are  two  classes  of  causes  authorizing  a  removal.  In  one 
class  of  cases  mentioned  in  the  statute,  a  removal  may  be  had  with- 
out regard  to  the  citizenship  of  parties,  as  where  a  suit  of  a  civil  nature 
at  law  or  in  equity  arises  "under  the  Constitution  or  laws  of  the 
United  States,  or  treaties  made  or  which  shall  be  made  under  their 
authority,  or  in  which  the  United  States  shall  be  plaintiff  or  peti- 
tioner." In  this  class  of  cases  the  citizenship  of  the  parties  is  not 
involved.  In  the  other  class  of  cases  the  right  of  removal  depends 
upon  the  proper  citizenship  of  the  parties.  In  all  cases  the  suit 
must  be  one  of  a  civil  nature  at  law  or  in  equity,  and  the  matter  in 
dispute  must  exceed  the  sum  or  value  of  five  hundred  dollars  exclu- 
sive of  costs  ;  and  in  the  class  of  cases  last  mentioned  it  must  be — 
1.  A  controversy  between  citizens  of  different  states;  or,  2.  A  con- 
troversy between  citizens  of  the  same  state  claiming  lands  under 
grants  of  different  states  ;  or,  3.  A  controversy  between  citizens  of 
a  state  and  foreign  states,  citizens  or  subjects. 

§  171.  All  suits  of  a  civil  nature. — It  must  be  a  controversy  of  a 
civil  nature,  at  law  or  in  equity,  which  can  be  removed.  This  em- 
braces all  suits  on  contracts  as  well  as  for  torts,^  and  all  kinds  of 
actions  cognizable  in  courts  of  equity.^     It  covers  a  suit  in  a  state 

^  It  may  be  observed,  however,  that  to  extend  to  suits  removed  to,  as  well 

the  first  section  of    the   act    provides  as  those    originally   brought   in,  the 

that  no  "circuit  or  district  court  shall  circuit  courts. 

have  cognizance  of  any  suit  founded         ^  Yannevar  v.  Bryant,  21  Wall.  41 ; 

on  contract  in  favor  of  an  assignee,  Fouvergne  v.  New  Orleans,  18  How. 

unless   such   suit   might    have    been  470 ;  In  re  Turner,  3  Wall.  Jr.  260  ; 

prosecuted  in    such  court  to  recover  Beecher  v.  Gillett,  1  Dill.  308  ;  Allin 

thereon    if   no  assignment  had  been  v.  Robinson,  Id.  119;  Dennistoun  v. 

made,  except  in  cases  of  promissory  Draper,  5  Blatch.  336  ;  Gibbs  v.  Usher, 

notes  negotiable  by  the  law  merchant  1  Holmes  348. 

and  bills  of  exchange."      In  the  ab-        ^  Charter  Oak  Co.  i'.  Star  Insurance 

sence  of  a  construction  of   this  Ian-  Co.,  6  Blatch.  208  ;  Gaines  w.  Fuentes. 

guage,  it  may  perhaps  be  unsafe   to  92  U.  S.  10;  Parker  v.  Overman,   18 

assume  that  it  will  not  be  construed  How.  137. 


CIRCUIT    COURTS.  149 

court  to  restrain  or  stay  the  execution  of  a  judgment  of  a  state 
court ;  ^  and  suits  not  regularly  brought  in  a  state  court,  such  as  suits 
pending  in  a  state  court,  but  brought  there  under  the  provisions  of 
the  statute  of  a  state,  from  an  appraisement  of  lands  by  commis- 
sioners duly  appointed  for  that  purpose,  which  is  sought  to  be  ap- 
propriated by  a  corporation  under  the  right  of  eminent  domain.^ 

For  forms  in  cases  of  removal,  see  j^ost  ("  Forms  for  Removal  of 
Causes  "),  No.  175,  et  seq. 

§  172.  Suits  arising  under  the  Constitution  or  lavrs  or  treaties  of 
the  United  States.^Under  the  second  clause  of  the  section  above 
referred  to,  the  cause  of  removal  depends  upon  the  suit  "  arising 
under  the  Constitution  or  laws  of  the  United  States,  or  treaties 
made  or  which  shall  be  made  under  th^ir  authority." 

The  petition  in  such  a  case  should  show,  by  the  facts  and  circum- 
stances stated  therein,  that  some  disputed  question  of  construction 
of  the  Constitution  or  laws  of  the  United  States,  or  some  treaty 
made  under  their  authority,  is  involved  in  the  suit ;  and  it  is  not  suffi- 
cient that  the  petitioner  states  merely  his  opinion  or  conclusion  that 
the  suit  arises  under  the  Constitution  or  laws  of  the  United  States, 
or  a  treaty  made  by  their  authority.^  And  if  the  suit  is  to  deter- 
mine the  rights  of  claimants  to  mines,  and  the  only  questions  pre- 
sented relate  to  the  local  laws,  rules,  regulations  and  customs  by 
which  the  rights  of  the  parties  are  governed,  and  whether  the 
parties  have  observed  them,  this  is  not  a  ground  for  jurisdiction  or 
removal.^ 

If  a  judgment  in  a  suit  depends  upon  a  proper  construction  of  the 
Constitution  or  laws  of  the  United  States,  the  suit  may  be  removed  ;^ 
but  the  Constitution  will  not  be  construed  so  as  to  authorize  the 
federal  courts  to  correct  mere  abuses  of  power  committed  by  a  state 
government.^  The  following  case  is  one  where  original  jurisdiction 
was  entertained  on  the  ground  of  a  constitutional  question  being  pre- 

iWest  V.   Auroria,  6   Wall.    139;  v.   Directors,   3  Woods  (C.  C.)    177; 

Patterson  v.  Boone  Co.,  3  Dill.  465.  Barrow  v.  Hunton,  99  U.  S.  80. 

2  Gold  W.  and  W.  Co.  v.  Keyes,  96  *  Cohens  v.   Virginia,  6  Wh.   264 ; 

U.  S.  199  ;  Wilder  v.  Union  National  Osborne  v.  Bank,  9  Wh.  821 ;  United 

Bank,  12  C,  L.  N.  75.  States  v.  Peters,  5  Cr.  115  ;  Ableman 

*  Trafton  V.  Nougues,  4  Saw.  (C.  C.)  v.   Booth,  21  How.  506;  Thurston  v, 

178  ;  The  420  Mining  Co.  v.  The  Bui-  Union  Pacific  K.  Co.,  3  Dill.  366. 

lion  Mining  Co.,  3  Saw.  634  ;  Dowell  ^  St.    Louis  ?;.  The    Ferry    Co.,    11 

0.  Griswold,  5  Saw.  39 ;  Bertonneau  Wall.    423 ;    State    Tax   on   Foreign- 
held  Bonds,  15  Wall.  300. 


150  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

sented,  but  the  facts  of  the  case  would  also  authorize  a  removal 
from  a  state  court  to  the  proper  circuit  court,  and  confer  jurisdic- 
tion upon  the  latter. 

A  suit  was  instituted  in  the  state  of  Connecticut  to  restrain  the 
collection  of  taxes  levied  on  the  real  estate  of  the  plaintiff,  for  the 
satisfaction  of  taxes  assessed  against  him  bj  reason  of  his  owner- 
ship of  certain  bonds,  executed  and  made  payable  in  the  state  of 
Illinois  and  secured  by  a  trust  deed  upon  real  estate  therein  situ- 
ated, the  statute  of  the  state  of  Connecticut  providing  for  such 
assessment  and  levy  in  that  state.  The  question  presented  in  the 
circuit  court  where  the  suit  was  brought  was  whether  the  statute 
authorizing  such  assessment  and  levy  in  Connecticut  was  repugnant 
to  the  Constitution  of  the  United  States.  The  case  was  taken  by  writ 
of  error  to  the  Supreme  Court,  which  held  that  the  statute  of  Connec- 
ticut authorizing  such  levy  was  not  repugnant  to  the  Constitution 
of  the  United  States.  The  court  say  :  "  So  long  as  the  state  by 
its  laws  prescribing  the  mode  and  subjects  of  taxation  does  not 
trench  upon  the  legitimate  authority  of  the  Union,  or  violate  any 
right  recognized  or  secured  by  the  Constitution  of  the  United  States, 
this  court,  as  between  the  state  and  its  citizens,  can  afford  him  no 
relief  against  state  taxation,  however  unjust  or  oppressive  or  erro- 
neous." ^ 

§  173.  Either  party  may  remove  when  the  controversy  is  between 
citizens  of  different  states. — It  will  be  observed  that  the  section 
under  consideration  provides  for  a  removal  by  either  party,  where 
a  case  of  removal  exists ;  and  that  where  the  "  controversy  is  wholly 
between  citizens  of  different  states,  and  which  can  be  fully  deter- 
mined as  between  them,  then  either  one  or  more  of  the  plaintiffs  or 
defendants  actually  interested  in  such  controversy  may  remove  said 
suit  to  the  circuit  court  of  the  United  States  for  the  proper  dis- 
trict." 

The  Supreme  Court  of  the  United  States,  in  construing  the  pro- 
vision allowing  a  removal  by  either  party  of  suits  in  which  there 
shall  be  a  controversy  between  citizens  of  different  states,  say: 
"  This  we  understand  to  mean  that  where  the  controversy  about 
which  a  suit  in  the  state  court  is  brought  is  between  citizens  of  one 
or  more  states  on  one  side  and  citizens  of  other  states  on  the  other 

^  Kirtland  v.  Hotchkiss,   100  U.  S.     491.     See   also   Providence   Bank  v. 

Billings,  4  Pet.  563. 


CIRCUIT    COURTS.  151 

side,  either  party  to  the  controversy  may  remove  the  suit  to  the 
circuit  court,  without  regard  to  the  position  they  occupy  in  the 
pleadings  as  plaintiiFs  or  defendants.  For  the  purpose  of  removal 
the  matter  in  dispute  may  be  ascertained,  and  the  parties  to  the 
suit  ranged  on  the  opposite  sides  of  the  dispute.  If  in  such  ar- 
rangement it  appears  that  those  on  one  side  are  all  citizens  of  dif- 
ferent states  from  those  on  the  other,  the  suit  may  be  removed."^ 

Under  former  statutes  the  right  of  the  parties  to  remove  a  cause 
depended  upon  the  position  they  occupied  as  plaintiffs  or  defend- 
ants in  the  pleadings.^  But  under  the  present  law  the  parties  are 
placed  upon  different  sides  of  the  suit,  according  to  the  facts  of  the 
case;  and  where  all  of  the  parties  on  either  side  desire  a  removal, 
they  are  entitled  to  it,  if  the  requisite  citizenship  exists;  that  is,  if 
those  on  one  side  are  all  citizens  of  different  states  from  those  on 
the  other. 

In  Removal  Cases,  above  cited,  Mr.  Justice  Bradley,  while  con- 
curring with  the  opinion  of  the  court  therein  given,  maintained  a 
broader  interpretation  of  the  statute,  sustained  by  the  following 
argument :  "  In  my  judgment  a  controversy  is  such,  as  the  expres- 
sion is  used  in  the  Constitution  and  in  the  law,  when  any  of  the  parties 
on  one  side  thereof  are  citizens  of  a  different  state  or  states  from 
that  of  which  any  of  the  parties  on  the  other  side  are  citizens.  *  *  * 
It  seems  to  me  clear  that  in  construing  the  present  law  we  are  not 
bound  by  the  construction  given  to  the  old  Judiciary  Act.  The 
words  of  that  act,  conferring  jurisdiction  upon  the  circuit  courts  in 
respect  to  citizenship,  were  not  the  same  as  those  used  by  the  present 
law  or  by  the  Constitution.  It  only  conferred  jurisdiction  when  'the 
suit  is  between  a  citizen  of  a  state  where  the  suit  is  brought  and  a 
citizen  of  another  state.'  The  singular  number  only  was  used,  and 
the  courts,  in  applying  the  law  to  cases  in  which  there  was  a  plu- 
rality of  plaintiffs  and  defendants,  construed  it  (perhaps  unjustly) 
as  requiring  that  each  plaintiff  and  each  defendant  should  have  the 
citizenship  required  by  law.  But  now  it  is  not  so.  The  present 
law  follows  the  language  of  the  Constitution,  and  gives  the  juris- 
diction to  the  circuit  courts  in  the  broadest  terms,  namely,  when- 
ever in  any  suit  there  is  'a  controversy  between  citizens  of  different 

^  Waite,  C.  J.,  ia  Removal  Cases,  Act,  it  was  held  that  it  was  not  neces- 

100  U.  S.  457.  sary  for  all  the  parties  entitled  to  a 

"^  Coal   Co.  V.  Blatchford,   11  Wall,  removal  to  join  therein  at  one  time: 

174.     Under  sec.  12  of  the  Judiciary  Field  v.  Lownsdale,  1  Deady  288. 


152  FEDERAL    PLEADIN'G,    PRACTICE    AND    PROCEDURE. 

states ;'  and  this  broad  and  general  expression,  as  I  think  I  have 
shown,  gives  jurisdiction  where  any  of  the  contestants  on  opposite 
sides  of  the  controversy  are  citizens  of  different  states."^ 

Where  a  suit  was  brought  in  a  state  court  for  the  recovery  of 
lands  and  damage  for  the  detention  of  them,  and  the  whole  con- 
troversy, so  far  as  the  title  was  concerned,  was  between  the  plain- 
tiff, a  citizen  of  the  state  where  the  suit  was  brought,  and  some  de-. 
fendants,  also  citizens  of  that  state,  and  others,  citizens  of  other 
states,  but  the  latter  had  no  rights  separate  from  the  other  defend- 
ants, and  they  were  dependent  wholly  upon  the  resident  defendants' 
right  to  the  possession  of  the  property,  it  was  held  that  the  contro- 
versy was  not  removable.^ 

Where  a  decree  of  a  state  court  was  rendered  in  1874,  and  an 
appeal  therefrom  was  taken  in  1876  to  the  supreme  court  of  the 
state,  and  in  1877  the  decree  was  reversed  and  the  cause  remanded, 
"  with  leave  to  both  parties  to  amend  pleadings  as  they  may  be  ad- 
vised, and  to  take  testimony,  and  for  an  account  to  be  taken  in 
accordance  with  the  views  taken  in  the  opinion"  of  the  court,  and 
on  the  day  after  the  mandate  from  the  supreme  court  was  received 
in  the  court  of  original  jurisdiction,  the  defendant  filed  his  petition 
praying  that,  by  reason  of  the  citizenship  of  the  parties,  the  cause 
be  removed  to  the  proper  circuit  court,  it  was  held  that  neither  the 
date  when  nor  the  stage  of  the  cause  at  which  the  petition  was 
filed  precluded  the  removal.'^ 

A  suit  cannot  be  removed  from  a  state  court  to  the  circuit  court 
unless  either  all  the  parties  on  one  side  of  the  controversy  are  citi- 
zens of  difi"erent  states  from  those  on  the  other  side,  or  there  is  in 
such  a  suit  a  separable  controversy,  wholly  between  some  of  the  par- 
ties who  are  citizens  of  different  states,  which  can  be  fully  deter- 
mined as  between  them.* 

For  forms  in  cases  of  removal,  see  i^ost,  Forms  Nos.  175-184. 

1  See    also    Girardy    r.    Moore,    3  ^  Hewit  «;.  Phelps,  105  U.  S.  393  ; 

Woods  (C.  C.)  379   (1877);  Pettelon  distinguished  from  Jifkins  v.  Sweet- 

V.  Noble,  7  Biss.  (C.  C.)  449.     If  a  zer,  102  U.S.  177.    Section  643  of  the 

pei'son    who   is   a   party  to   the   suit  Revised  Statutes  is  not  superseded  by 

joins  with  one  who  is  not,  in  a  peti-  the  act  of  March  3,  1875,  c.  137  :  Ven- 

tion  for  removal,  this  does  not  affect  able   v.   Richards,   105   U.   S.   636;    1 

the  right  of  the  real  party,  as  the  pe-  Hugh.  326. 

tition  will  be  treated  in  legal  effect  as  *  1  Hyde  v.  Ruble,  104  U.  S.  407. 

liis  own  petition  :   Meyer  v.  Delaware  This  case  also  holds  that  the  second 

11.  Co.,  lOO  U.  S.  457.  clause  of  sec.  639  of  the  Revised  Stat- 

^  Corbin  v.  Van   Brunt,  105  U.  S.  utes  was  repealed  by  the  act  of  March 

576.  3,  .1875. 


CIRCUIT   COURTS.  153 

§  174.  "Where  one  party  is  an  alien. — In  considering  the  grounds 
of  original  jurisdiction  of  the  circuit  courts,  we  have  shown  that 
where  an  alien  is  a  party,  the  other  party  must  be  a  citizen  of  a 
state,  and  that  it  is  not  sufficient  to  allege  that  one  party  is  an 
alien,  but  it  is  necessary  to  aver  that  he  is  a  subject  or  citizen  of 
some  one  foreign  state ;  and  that  it  is  no  objection  to  the  jurisdic- 
tion of  the  court  in  such  a  case  that  the  alien  resides  in  the  same 
state  with  the  other  party. ^  The  same  doctrine  would  apply  in  the 
case  of  an  application  for  removal.  We  have  also  shown  that  a 
corporation  is  a  citizen  of  the  state  creating  it.^  So  also  a  corpora- 
tion may  be  an  alien ;  and  where  a  suit  is  between  a  citizen  of  a 
state  and  an  alien  corporation,  this  would  confer  original  jurisdic- 
tion upon  the  circuit  courts,  and  constitute  a  cause  of  removal  on 
the  ground  of  citizenship.^ 

§  175.  Manner  of  removal. — The  mode  or  manner  of  removal  of 
causes  from  the  state  to  the  circuit  courts  is  specifically  pointed  out 
by  the  statute ;  but,  as  is  usual  with  new  statutes,  new  questions 
have  been  presented  to  the  federal  courts,  requiring  a  construction 
of  it.  The  act  on  this  subject  provides:  "That  whenever  either 
party,  or  any  one  or  more  of  the  plaintiffs  or  defendants  entitled  to 
remove  any  suit  mentioned  in  the  next  preceding  section  [§  2], 
shall  desire  to  remove  such  suit  from  a  state  court  to  the  circuit 
court  of  the  United  States,  he  or  they  may  make  and  file  a  petition 
in  such  suit  in  such  state  court  before  or  at  the  term  at  which  said 
cause  could  be  first  tried,  and  before  the  trial  thereof,  for  the  removal 
of  such  suit  into  the  circuit  court  to  be  held  in  the  district  where  such, 
suit  is  pending,  and  shall  make  and  file  therewith  a  bond,  with 
good  and  sufficient  surety,  for  his  or  their  entering  in  such  circuit 
court  on  the  first  day  of  its  then  next  session,  a  copy  of  the  record 
in  such  suit,  and  for  paying  all  costs  that  may  be  awarded  by  the 
said  circuit  court,  if  said  court  shall  hold  that  such  suit  was  wrong- 
fully or  improperly  removed  thereto,  and  also  for  there  appearing 
and  entering  special  bail  in  such  suit,  if  special  bail  was  originally 
requisite  therein ;  it  shall  then  be  the  duty  of  the  state  court  to 
accept  said  petition  and  bond,  and  proceed  no  further  in  such  suit, 
and  any  bail  that  may  have  been  originally  taken  shall  be  discharged  ; 
and  the  said  copy  being  entered  as  aforesaid  in  such  circuit  court 

^  See  ante,  I  195.  *  Terry  v.  The  Imperial  Fire   Ins. 

^  See  ante,  I  191.  Co.,  3  Dill.  408. 


154  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

of  the  United  States,  the  cause  shall  then  proceed  in  the  same 
manner  as  if  it  had  been  commenced  in  the  said  circuit  court ;  and 
if  in  any  action  commenced  in  a  state  court,  the  title  of  land  be 
concerned,  and  the  parties  are  citizens  of  the  same  state,  and  the 
matter  in  dispute  exceeds  the  sum  or  value  of  five  hundred  dollars, 
exclusive  of  costs,  the  sum  or  value  being  made  to  appear,  one  or 
more  of  the  plaintiffs  or  defendants,  before  the  trial,  may  state  to  the 
court,  and  make  affidavit  if  the  court  require  it,  that  he  or  they 
claim  and  shall  rely  upon  a  right  or  title  to  the  land  under  a 
grant  from  a  state,  and  produce  the  original  grant,  or  an  exempli- 
fication of  it,  except  where  the  loss  of  public  records  shall  put  it 
out  of  his  or  their  power,  and  shall  move  that  any  one  or  more  of 
the  adverse  party  inform  the  court  whether  he  or  they  claim  a 
right  or  title  to  the  land  under  a  grant  from  some  other  state,  the 
party  or  parties  so  required  shall  give  such  information  or  other- 
wise not  be  allowed  to  plead  such  grant,  or  give  it  in  evidence  upon 
the  trial;  and  if  he  or  they  inform  that  he  or  they  do  claim  under 
such  grant,  any  one  or  more  of  the  party  moving  for  such  informa- 
tion may  then,  on  petition  and  bond,  as  hereinbefore  mentioned  in 
this  act,  remove  the  cause  for  trial  to  the  circuit  court  of  the 
United  States  next  to  be  holden  in  such  district ;  and  any  one  of 
either  party  removing  the  cause  shall  not  be  allowed  to  plead  or 
give  evidence  of  any  other  title  than  that  by  him  or  them  stated  as 
aforesaid  as  the  ground  of  his  or  their  claim ;  and  the  trial  of  the 
issues  of  fact  in  the  circuit  courts  shall  in  all  suits,  except  those  of 
equity  and  of  admiralty  and  maritime  jurisdiction,  be  by  jury."  ^ 

For  form  of  petition  and  bond  in  such  cases,  see  post,  Form  No. 
175,  et  seq. 

§  176.  When  the  petition  for  removal  must  be  filed. — The  peti- 
tion must  be  filed  in  the  state  court  "  before  or  at  the  term  at  which 
said  cause  could  first  be  tried,  and  before  the  trial  thereof."  If  the 
suit  was  pending  at  the  time  of  the  passage  of  the  act,  an  application 
for  removal  would  be  in  time  if  made  before  the  trial  and  at  the  first 
term  of  the  court  after  its  passage,  Where  a  trial  was  had  in  a  state 
court,  but  there  was  a  disagreement  of  the  jury  in  the  case,  and  the 
cause  was  continued  until  the  next  term,  at  which  term  it  was  again 
continued  till  the  following  one,  when  a  petition  for  removal  was  filed, 

1  Act  of  March  3,  1875,  ch.  137,  |  3. 


CIRCUIT    COURTS.  155 

it  was  held  proper  not  to  grant  it.^  This  application  did  not  com- 
ply with  the  provision  of  the  statute  requiring  it  to  be  made  before 
or  at  the  next  term  at  which  the  cause  could  be  tried. 

But  where  one  trial  has  been  had  and  the  judgment  has  been  set 
aside  or  vacated,  so  that  the  cause  stands  again  for  a  new  trial, 
a  petition  for  removal  may  then  be  made  as  if  there  had  been 
no  trial.  In  case  of  a  reversal  of  a  judgment  of  a  state  court 
on  appeal  or  error,  the  right  to  another  trial  must  be  perfected 
before  the  application  can  be  made.^  Thus  where  the  supreme 
court  of  a  state  reversed  the  judgment  of  a  state  court  and 
granted  a  new  trial,  but  on  application  allowed  a  rehearing  of 
the  same,  it  was  held  that  the  supreme  court  of  the  state  still  held 
jurisdiction,  and  that  a  petition  filed  in  the  meantime  for  a  removal 
of  the  cause  from  the  state  to  the  circuit  court  was  premature.^ 

The  petition  must  be  presented  to  the  court  before  the  trial  is 
entered  upon ;  but  to  bar  the  right  of  removal  on  this  ground  it 
must  appear  that  the  trial  was  actually  and  in  good  faith  begun 
when  the  application  was  made ;  and  no  mere  attempt  of  a  party  to 
get  himself  on  the  record  as  having  commenced  the  trial  will  avail 
him.* 

§  1<7.  The  act  must  be  substantially  complied  Tvith ;  sufficiency 
of  the  bond. — It  is  essential  that  the  provisions  of  the  section  be  at 
least  substantially  complied  with.  A  bond  with  good  and  suflScient 
surety  must  be  filed  with  the  petition  for  removal ;  and  hence  where 
the  bond  given  on  the  application  for  a  removal  contained  a  blank 
space  where  the  penalty  of  the  bond  should  have  been  inserted,  it 
W'as  held  not  to  be  a  compliance  with  the  statute,  and  consequently 
that  no  right  of  removal  existed.^ 

The  petition  for  the  removal  should  state  the  grounds  of  the  re- 
moval clearly,  whether  arising  from  the  subject  matter  or  the 
citizenship  of  the  parties,  and  the  sufficiency  of  the  amount  in  con- 

1  Bible  Society  v.  Grove,  101  U.  S.  niture  Co.,  4  Dill.  563 ;  Palmer  v. 
610;  Removal  Cases,  100  U.  S.  457.  Call,  4  Dill.  566. 

2  Insurance  Co.  v.  Dunn,  19  Wall.  *  Removal  Cases,  100  U.  S.  457 ; 
214.  Baker  v.  Peterson,  4  Dill.  562 ;  Had- 

^  Railroad  Co.  v.  McKinley,  99  U.  ley  v.   San   Fi'ancisco,    3    Saw.    553  ; 

S.  147.      See  also  Lowe  v.  Williams,  Merchants'    and    Man.    Nat.   Bk.   v. 

94  U.  S.  650;  Yannevar  v.  Bryant,  21  Wheeler,  13  Blatch.  218. 

Wall.  41.      See  also  Dart  v.  McKin-  ^  Burdick  v.  Hale,  7  Biss.  96.     The 

ney,  9  Blatch.  359;  Atlee  v.  Potter,  4  state  court  has  no  discretion  in  the 

Dill.  559;  McColough  v.  School  Fur-  matter;  Meyer  v.  Del.  R.  C.  Co.,  lOU 

U.  S.  457. 


156  FEDERAL    PLEADING,    PRACTICE   AXD    PROCEDURE. 

troversy,  where  that  is  required  ;  and  if  the  right  of  removal  is 
based  upon  the  citizenship  of  the  parties  in  different  states,  the 
record  or  petition  should  show  this  affirmatively,  and  that  at  the 
time  of  the  commencement  of  the  suit  the  parties  were  citizens  of 
different  states.^ 

AVhere  the  petition  shows  proper  grounds  for  removal,  and  is 
duly  verified  and  filed,  with  a  proper  and  sufficient  bond,  it  is  the 
duty  of  the  court  to  accept  the  petition  and  bond,  and  proceed  no 
further  in  the  case ;  in  fact  it  has  no  further  jurisdiction  of  it ; 
but  if  the  court  refuses  to  allow  a  removal,  and  the  party  entitled 
thereto  defends  the  action  in  the  state  court,  he  loses  none  of  his 
rights  by  so  doing.^ 

§  178.  The  state  court  may  pass  upon  the  sufficiency  of  the  applica- 
tion for  removaL — There  is  no  right  to  a  removal  until  a  good  petition 
and  a  bond  with  a  good  and  sufficient  surety  are  filed  in  the  state  court. 
These  are  conditions  precedent  to  the  right  of  removal ;  and  the 
question  whether  they  comply  with  the  law  must,  in  the  first  in- 
stance, be  decided  by  the  state  court.  The  court  in  such  cases  is 
called  upon  to  yield  its  jurisdiction  to  another  court,  on  the  ground 
of  a  compliance  with  certain  statutory  conditions,  and  it  would  appear 
reasonable  that  the  state  court  should  be  allowed  to  pass  upon  this 
question.^  The  amount  of  the  penalty  and  the  required  conditions 
should  be  inserted  in  the  bond.* 

In  case  of  a  good  and  sufficient  petition  and  bond  being  filed  in 
the  state  court,  the  better  practice  would  be  for  the  court  to  make 
an  order  for  the  removal  of  the  cause.  But  this  does  not  seem  to 
be  absolutely  necessary.^ 

Where  a  sufficient  cause  for  removal  is  shown  by  a  petitioner, 
therefore,  it  is  the  duty  of  the  state  court  to  proceed  no  further 
with  the  suit.  The  jurisdiction  of  the  proper  circuit  court  then 
attaches,  and  is  not  lost  by  the  failure  of  the  petitioner  to  enter  the 
record  and  docket  the  cause  on  the  first  day  of  the  next  term  of 

1  Insurance  Co.  w.tPechner,  95  U.  S.  R.  Co.),  100  U.  S.  457,  where  it  was 
183  ;  Abranches  v.  Scheil,  4  Blatch.  also  held  that  it  is  not  necessary  that 
256 ;  Thurston  v.  Union  P.  R.  Co.,  3  two  persons  should  sign  the  bond  as 
Dill.  366  ;  Railway  Co.  v.  Ramsey,  22  sureties. 

Wall.  322 ;  Kaeiser  v.  Illinois  Central  *  Burdick  v.  Hale,  7  Biss.  96. 

R.  Co.,  2  McCrary  187.  ^  Osgood   v.    Chicago,    D.  &  V.  R. 

2  Removal  Cases,  Meyer  v.  Del.  R.  Co.,  6  Biss.  330;  Connor  r.  Scott,  4 
C.  Co.,  100  U.  S.  457.  Dill.  242 ;  Commercial  and  Sav.  Bk. 

^Removal  Cases  (Meyer  v.  Delaware     v.  Corbett,  5  Saw.  172. 


CIRCUIT    COURTS.  •  157 

the  circuit  court ;  but  the  entry  on  a  subsequent  day  may  be  per- 
mitted upon  good  cause  shown,  and  good  cause  is  shown  where  the 
petition  for  removal  has  been  overruled  by  the  state  court  and  the 
petitioner  forced  to  trial  upon  the  merits  ;  and  he  loses  no  right 
by  contesting  the  suit  on  its  merits  in  the  state  courts  in  such  a 
case.^ 

§  179.  Personal  citizenship  of  the  parties. — Where  jurisdiction  or 
the  right  of  removal  depends  upon  the  proper  citizenship  of  the 
parties,  it  requires  the  personal  citizenship  of  them,  even  though 
they  may  act  in  a  representative  capacity,  as  executors  or  adminis- 
trators. Thus,  where  a  suit  was  brought  by  executors,  and  a  peti- 
tion for  a  removal  averred  that  they,  personally,  had  the  required 
citizenship,  it  was  held  sufficient.^  But  merely  nominal  parties  can- 
not affect  the  right  whatever  may  be  their  citizenship.^ 

§  180.  When  a  controversy  is  wholly  betv^reen  citizens  of  different 
states. — A  part  or  fragment  of  a  cause  cannot  be  removed.  But  when 
in  any  suit  mentioned  in  section  2  of  the  act  of  1875  there  shall 
be  a  controversy  which  is  wholly  between  citizens  of  different  states, 
and  which  can  be  fully  determined  as  between  them,  then  either  one 
or  more  of  the  plaintiffs  or  defendants  actually  interested  in  such 
controversy  may  remove  the  suit.* 

§  181.  Removal  on  account  of  prejudice  or  local  influence. — The 
third  subdivision  of  section  639  of  the  Revised  Statutes  provides 
for  the  removal  of  suits  brought  by  a  citizen  of  a  state  against  a 
citizen  of  another  state,  on  the  ground  that  the  non-resident  party 
applying  for  the  removal  cannot  obtain  justice  in  the  state  court 
on  account  of  prejudice  or  local  influence.  The  provision  is  as  fol- 
lows :  "  When  a  suit  is  between  a  citizen  of  the  state  in  which  the 
suit  is  brought  and  a  citizen  of  another  state,  it  may  be  removed  on 
the  petition  of  the  latter,  whether  he  be  plaintiff  or  defendant,  filed 
at  any  time  before  the  trial  or  final  hearing  of  the  suit,  if,  before  or 
at  the  time  of  filing  said  petition,  he  makes  and  files  in  said  state 

'  Railroad  Company  v.  Koontz,  104  S.  610;  Insurance  Co.  v.  Pechner.  9.'> 

U.  S.  5  ;  Gordon  v.  Longest,  16  Pet.  U.  S.  183. 

97  ;  Insurance  Co.  v.  Dunn,  19  Wall.  '^  See  ayite,  |  12.5. 

214.     See  also  King  v.  Worthington,  *  Harvey  v.  111.  Mid.  R.  Co.,  7  Biss. 

104  U.  S.  44.  103  ;  Carraher  v.  Brennan,  7  Id.  497  ; 

^  Amory  v.  Amory,   95  U.  S.   186  •,  Arapahoe  Co.  v.  Kansas  Pac.  K.  (Jo., 

Craigie  v.  McArtliur,  4  Dill.  474.  The  4  Dill.  277  ;  Removal  Cases,  100  U. 

record  should  show  the  proper  citizen-  S.  457. 
ship :  Bible  Society  v.  Grove,  101  U. 


158     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

court  an  affidavit,  stating  that  he  has  reason  to  believe  and  does 
believe  that,  from  prejudice  or  local  influence,  he  will  not  be  able  to 
obtain  justice  in  such  state  court." 

The  right  of  removal  under  this  provision  depends  not  only  upon 
the  proper  citizenship  of  the  parties,  but  upon  prejudice  or  local 
influence;  and  suits  cannot  be  removed  on  these  grounds,  unless 
they  are  between  a  citizen  of  the  state  in  which  the  suit  is  brought 
and  a  citizen  of  another  state,  and  then  onlj  on  the  petition  of  the 
non-resident  party,  though  he  may  be  either  plaintiff"  or  defendant.^ 

For  form  of  petition  in  such  cases,  see  post,  Form  No.  180.  For 
forms  of  bonds  on  removal,  see  post,  Forms  Nos.  178,  181. 

§  182.  Application  must  be  made  to  a  state  court  of  original  juris- 
diction.— The  statute  authorizing  the  removal  of  causes  from  a 
state  to  the  circuit  court  has  been  construed  to  authorize  a  re- 
moval only  from  a  state  court  of  original  jurisdiction.  If  a  cause 
has  been  tried  in  a  state  court  of  original  jurisdiction  and  an  ap- 
peal taken  therefrom,  or  a  writ  of  error  obtained,  and  the  cause 
stands  for  a  rehearing  in  the  appellate  court  of  a  state,  it  cannot 
be  removed  from  thence  to  a  circuit  court  of  the  United  States 
under  the  federal  statutes  providing  for  the  removal  of  causes  from 
a  state  court  to  a  circuit  court  of  the  United  States.^ 

§  183.  Removal  in  case  of  suits  against  corporations  organized 
under  laws  of  the  United  States. — The  Revised  Statutes  expressly 
provide  that  "  Any  suit  commenced  in  any  court  other  than  a 
circuit  or  district  court  of  the  United  States,  against  any  corpora- 
tion other  than  a  banking  corporation,  organized  under  a  law  of  the 
United  States,  or  against  any  member  thereof  as  such  member,  for 
any  alleged  liability  of  such  corporation  or  of  such  member  as  a 
member  thereof,  may  be  removed  for  trial  in  the  circuit  court  for 
the  district  where  such  suit  is  pending,  upon  the  petition  of  such 
defendant  verified  by  oath,  stating  that  such  defendant  has  a  de- 
fence arising  under  or  by  virtue  of  the  Constitution  or  of  any 
treaty  or  law  of  the  United  States.  Such  removal  in  all  other 
respects  shall  be  governed  by  the  provisions  of  the  preceding  sec- 
tion." ^ 

It  will  be  noticed  that  the  ground  of  removal  in  this  case  is  "a 

^  Bible  Society  v.  Grove,   101  U.  S.  '  Stevenson  v.  Williams,   19  Wall. 

GIO ;  Cook  V.  Ford,  4  Cent.  L.  J.  561  ;  572  ;  Railroad  Co.  v.  McMinley,  99  U. 

2  C.  L.  B.  108.     See  also  Hurst  v.  W.  S.  147. 

&  A.  R.  Co.,  93  U.  S.  71.  ^  Rev.  Stat,  g  640. 


CIRCUIT   COURTS.  159 

defence  arising  under  or  by  virtue  of  the  Constitution  or  any  treaty 
or  law  of  the  United  States."  There  seems  to  be  no  limit  to  the 
jurisdiction  on  account  of  the  sum  or  value  of  the  matter  in  dispute, 
as  is  provided  by  the  second  section  of  the  act  of  March  3,  1875, 
which  also  provides  for  the  removal  of  a  cause  from  a  state  court 
by  either  party  in  case  the  matter  in  dispute,  exclusive  of  costs, 
exceeds  the  sum  or  value  of  five  hundred  dollars,  and  the  suit  arises 
"under  the  Constitution  or  laws  of  the  United  States,  or  treaties 
made  or  which  shall  be  made  under  their  authority."  But  this 
question  does  not  appear  to  be  authoritatively  settled.  As  a  corpora- 
tion may  be  a  party  and  a  citizen,  the  question  might  arise  whether 
section  640  of  the  Revised  Statutes  was  not  repealed  by  the  pro- 
vision of  the  act  of  March  3,  1875,  above  referred  to.  The  former 
statute  is  not  in  conflict  with  the  latter,  and  the  larger  rights  and 
privileges  of  corporations  and  members  of  the  same  under  the  sec- 
tion of  the  Revised  Statute  referred  to  can  hardly  be  considered  as 
repealed  by  any  reasonable  construction  of  the  later  act.  If  so, 
the  time  and  mode  of  application  of  the  parties  mentioned  in  the 
Revised  Statute  would  be  governed  by  the  provisions  of  the  third 
subdivision  of  section  639  of  the  Revised  Statutes,  which  does  not 
limit  the  time  of  application  so  strictly  as  the  act  of  1875,  nor  does 
the  right  of  removal  depend  upon  the  value  of  the  matter  in  con- 
troversy.^ 

Under  this  provision  the  truth  of  the  allegations  of  the  grounds 
for  the  removal,  in  the  petition  therefor,  cannot  be  tried  on  affidavits 
on  a  motion  to  remand,  but  this  may  be  put  in  issue  in  the  circuit 
court  and  settled  on  the  trial  of  the  case  there.  Nor  can  the  rio-hts 
of  the  corporation  defendant,  or  a  member  thereof,  be  defeated  of 
the  right  of  removal  by  being  joined  with  other  parties  not  within 
the  provisions  of  the  statute.^  If  it  is  averred  in  the  petition  for 
removal  that  the  defendant  is  a  corporation  or  a  member  thereof, 
and  if  a  corporation  that  it  is  not  a  banking  corporation,  organized 
under  a  law  of  the  United  States,  and  that  the  defendant  has  a  de- 
fence under  an  act  of  Congress,  giving  the  title  of  the  act,  this  is 
a  sufficient  compliance  with  the  statute,  although  it  does  not  allege 
what  the  defence  is,  or  the  facts  constituting  it.     But  the  statute 

1  That  it  is  not  repealed  by  the  act        ^  Fish  v.  The  Union  Pac.  R.  Co.,  8 
of  March  3,  1875,  see  Kain  v.  Texas     Blatch.  243.     See  also  Fisk  v.  Union 
Pac.  R.  Co.,  3  Cent.  L.  J.  12  ;  Ely  v.     Pae.  R.  Co.,  6  Id.  362. 
Northern    Pac.  R.   Co.,  36  Leff.  Int. 
164 ;  s.  c,  7  W.  N.  145. 


160  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

has  no  application  to  a  corporation  created  by  a  foreign  state  or 
government.^ 

Where  in  the  petition  for  removal  it  was  averred  that  the  defend- 
ant was  a  corporation  created  under  and  by  virtue  of  the  laws  of 
the  United  States,  and  not  a  banking  corporation,  and  that  it  had 
a  defence  under  the  aforesaid  laws,  it  was  held  that  the  corporation 
was  entitled  to  a  removal  of  the  cause.^ 

For  form  of  application  for  removal  in  such  cases,  see  post,  No. 
180. 

§  184.  Removal  of  causes,  civil  or  criminal,  against  persons  denied 
any  civil  right. — Section  641  of  the  Revised  Statutes  provides  that 
"  when  any  civil  suit  or  criminal  prosecution  is  commenced  in  any 
state  court,  for  any  cause  whatsoever,  against  any  person  who  is 
denied  or  cannot  enforce  in  the  judicial  tribunals  of  the  state,  or  in 
that  part  of  the  state  where  such  suit  or  prosecution  is  pending,  any 
right  secured  to  him  by  any  law  providing  for  the  equal  civil  rights 
of  citizens  of  the  United  States,  or  of  all  persons  within  the  juris- 
diction of  the  United  States,  or  against  any  officer,  civil  or  military, 
or  other  person,  for  any  arrest  or  imprisonment,  or  other  trespasses 
or  wrongs,  made  or  committed  by  virtue  of  or  under  color  of  authority 
derived  from  any  law  providing  for  equal  rights  as  aforesaid,  or  for 
refusing  to  do  any  act  on  the  ground  that  it  would  be  inconsistent 
with  such  law,  such  suit  or  prosecution  may,  upon  the  petition  of 
such  defendant,  filed  in  said  state  court  at  any  time  before  the  trial 
or  final  hearing  of  the  cause,  stating  the  facts  and  verified  by  oath, 
be  removed  for  trial  into  the  next  circuit  court  to  be  held  in  the 
district  where  it  is  pending."  The  section  further  provides  that 
bail  or  other  security  given  shall  continue,  that  the  clerk  of  the 
state  court  shall  furnish  the  defendant  a  copy  of  the  record,  and 
that  when  it  is  properly  filed  in  the  circuit  court,  such  court  shall 
have  cognizance  of  the  same  as  if  originally  commenced  there;  that 
if  the  clerk  refuses  to  furnish  a  copy,  the  circuit  court  may  require 
the  plaintiff,  upon  reasonable  notice,  to  file  a  declaration,  petition 
or  complaint  in  the  cause,  and  on  failure  so  to  do  may  order  a  non- 

^  Jones  V.  The  Oceanic  Steam  Xav.  the  defendant  that  the  defence  does 

Co.,  11  Blatch.  406.  not  arise  under  the  Constitution  or 

^Turton   v.   Union   Pac.   R.  Co.,  3  laws  or  treaties  of  the  United  States, 

Dill.   366.     See  also  Farmers  Co.  v.  the  cause  will  be  remanded :  Magee 

Central  R.  Co.,  3  Dill.  379.     If,  how-  v.  The   Union    Pac.  R.    Co.,  2   Saw. 

ever,  it  appears  from  the  answer  of  (C.  C.)  447. 


CIRCUIT   COURTS.  161 

suit  and  dismiss  the  cause ;  and  that  if,  without  the  refusal  of  the 
clerk  to  furnish  such  copy,  the  defendant  fails  to  file  such  copy  in 
the  circuit  court  as  aforesaid,  a  certificate  thereof  is  required  to  be 
given  by  the  clerk  of  the  circuit  court,  upon  the  production  of  which 
in  the  state  court  the  cause  shall  proceed  as  if  no  petition  for  a 
removal  had  been  filed. 

Under  this  section  it  has  been  held  that  the  denying  of  any  right 
secured  to  a  person  by  any  law  providing  for  the  equal  civil  rights 
of  citizens  of  the  United  States  means  a  denial  by  some  statutory 
provision  of  the  state  or  by  legislative  action,  and  an  inability  to 
enjoy  some  right  secured  to  him  by  the  Constitution  of  the  United 
States  or  acts  of  Congress  providing  for  the  equal  civil  rights  of 
citizens  of  the  United  States.  And  it  is  incumbent  upon  the  de- 
fendant who  seeks  a  removal  under  this  section  to  state  the  facts 
upon  which  he  bases  his  claim  for  removal  in  his  petition,  duly  ver- 
ified by  his  oath,  and  it  is  not  sufiicient  to  state  his  belief  that  he 
cannot  enforce  his  rights  at  some  subsequent  stage  of  the  proceed- 
ings, as  the  statute  has  no  application  to  judicial  infractions  of  the 
constitutional  amendment  securing  equal  rights  after  the  trial  has 
commenced.  And  if  there  is  a  failure  to  show  the  facts  in  the 
petition  which  entitle  the  petitioner  to  a  removal,  the  circuit  court 
has  no  power  to  try  a  cause  on  removal,  and  should  remand  it  to  the 
state  court.^ 

A  criminal  prosecution  cannot  be  said  to  have  commenced,  in  the 
sense  of  the  law,  in  the  state  court  until  after  an  indictment  is  found. 
The  object  of  the  statute  was  evidently  to  provide  a  remedy  for  the 
infraction  of  those  rights  secured  by  the  provisions  of  the  fourteenth 
amendment  of  the  Constitution  to  a  recently  emancipated  race  which 
had  for  a  long  time  been  held  in  slavery,  and  to  give  them  the  pro- 
tection of  the  laws  in  the  enjoyment  of  such  rights.^ 

§  185.  When  the  petitioner  is  in  actual  custody  of  a  state  court. — 
If  the  defendant  petitioning  for  a  removal  of  a  cause,  as  provided 
by  the  section  of  the  statute  last  referred  to,  is  in  actual  custody 
under  process  issued  by  the  state  court,  and  his  petition  for  the  re- 
moval of  the  cause  has  been  duly  filed  in  the  circuit  court,  it  is  the 

1  Virginia  v.  Rivers,  100  U.  S.  313.         ^  Slaughter-House  Cases,  16  Wall. 
This  provision  was  held  not  to  be  in     36  ;   United  States  v.  Reese,  92  U.  S. 
conflict  with  the  Constitution  of  the     214. 
United  States  :  Strauder  ik  West  Vir- 
ginia, 100  U.  S.  303. 
11 


162     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

duty  of  tlie  clerk  of  said  court  to  issue  a  writ  of  habeas  corpus  cum 
causa  ;  and  it  is  the  duty  of  the  marshal,  by  virtue  of  said  writ,  to 
take  the  body  of  the  defendant  into  his  custody,  to  be  dealt  with  in 
said  court  according  to  law  and  the  orders  of  said  court,  or  of  any 
judge  thereof  in  case  of  vacation  ;  and  it  is  made  the  duty  of  the 
marshal,  in  such  a  case,  to  file  with  or  deliver  to  the  clerk  of  the 
state  court  a  duplicate  copy  of  said  writ.^ 

§  186.  Removal  of  suits  and  prosecutions  against  revenue  and 
other  federal  officers. — ^."  When  any  civil  suit  or  criminal  prosecution 
is  commenced  in  any  court  of  a  state  against  any  ofiicer  appointed 
under  or  acting  by  authority  of  any  revenue  law  of  the  United 
States  now  or  hereafter  enacted,  or  against  any  person  acting  under 
.or  by  authority  of  any  such  officer,  on  account  of  any  act  done  under 
<;olor  of  his  office  or  of  any  such  law,  or  on  account  of  any  right, 
title  or  authority  claimed  by  such  officer  or  other  person  under  any 
such  law  ;  or  is  commenced  against  any  person  holding  property  or 
estate  by  title  derived  from  any  such  officer,  and  affects  the  validity 
of  any  such  revenue  law;  or  is  commenced  against  any  officer  of  the 
United  States,  or  other  person,  on  account  of  any  act  done  under 
the  provisions  of  title  xxvi.,  '  The  Elective  Franchise,'  or  on  account 
of  any  right,  title  or  authority  claimed  by  such  officer  or  other  per- 
son under  any  of  the  said  provisions,  the  said  suit  or  prosecution 
may,  at  any  time  before  the  trial  or  final  hearing  thereof,  be  removed 
for  trial  into  the  circuit  court  next  to  be  holden  in  the  district  where 
the  same  is  pending,  upon  the  petition  of  such  defendant  to  said 
circuit  court,  and  in  the  following  manner :  said  petition  shall  set 
forth  the  nature  of  the  suit  or  prosecution,  and  be  verified  by  affida- 
vit, and,  together  with  a  certificate  of  some  counsellor  at  law  of  some 
court  of  record  of  the  state  where  such  suit  or  prosecution  is  com- 
menced, or  of  the  United  States,  stating  that,  as  counsel  for  the 
petitioner,  he  has  examined  the  proceedings  against  him  and  care- 
fully inquired  into  all  the  penalties  set  forth  in  the  petition,  and 
that  he  believes  them  to  be  true,  shall  be  presented  to  the  said  cir- 
cuit court,  if  in  session,  or  if  it  be  not,  to  the  clerk  thereof  at  his 
office,  and  shall  be  filed  in  said  office.  The  cause  shall  thereupon 
be  entered  on  the  docket  of  the  circuit  court,  and  shall  proceed  as 
a  cause  originally  commenced  in  that  court ;  but  all  bail  and  other 
security  given  in  such  suit  or  prosecution  shall  continue  in  like 

1  Rev.  Stat.  I  642. 


CIRCUIT   COURTS.  163 

force  and  effect  as  if  the  same  had  proceeded  to  final  judgment  and 
execution  in  a  state  court."  ^ 

If  the  suit  was  commenced  in  a  state  court  by  summons,  subpoena, 
petition  or  any  other  process  except  capias,  it  is  the  duty  of  the 
clerk  of  the  circuit  court  to  issue  a  certiorari  to  the  state  court, 
requiring  it  to  send  to  the  circuit  court  the  record  and  proceedings 
in  the  cause ;  and  if  it  was  commenced  by  a  capias  or  other  process 
by  which  a  personal  arrest  is  ordered,  it  is  the  duty  of  the  clerk  to 
issue  a  habeas  corpus  cum  causa,  a  duplicate  of  which  shall  be 
delivered  to  the  clerk  of  the  state  court  or  left  at  his  office  by  the 
marshal  of  the  district  or  his  deputy,  or  by  some  person  duly  au- 
thorized thereto ;  and  it  then  becomes  the  duty  of  the  state  court 
to  stay  all  further  proceedings  in  the  cause,  and  it  would  have  no 
further  jurisdiction  of  it.  If  the  defendant  is  in  custody  on  mesne 
process  therein,  it  is  the  duty  of  the  marshal,  by  virtue  of  the  writ 
of  habeas  corpus  cum  causa,  to  take  the  body  of  the  defendant  into 
his  custody,  to  be  dealt  with  according  to  law  and  the  order  of  the 
circuit  court,  or,  in  vacation,  of  any  judge  thereof.  If  it  is  made 
to  appear  to  the  circuit  court  that  no  copy  of  the  record  and  pro- 
ceedings therein  in  the  state  court  can  be  obtained,  it  may  require 
the  plaintiff  to  proceed  de  novo,  and  the  parties  can  then  proceed 
as  in  actions  originally  brought  in  the  circuit  court.  If  the  plain- 
tiff fails  thus  to  proceed,  the  circuit  court  may  enter  a  judgment  of 
non  prosequitur  against  him,  with  costs  for  the  defendant.^ 

§  187.  Petition  verified  ;  certificate  of  counsel. — Under  the  pro- 
visions of  this  section  of  the  statutes,  it  is  only  necessary  to  set 
forth  in  the  petition  facts  showing  the  nature  of  the  suit  or  prose- 
cution so  as  to  enable  the  court  to  determine  whether  it  falls  within 
the  class  of  cases  that  may  be  removed.  Where  a  petitioner  for  the 
removal  of  a  prosecution  in  a  state  court,  where  he  was  held  to 
answer  an  indictment  for  murder,  stated  that  at  the  time  the  alleged 
act  for  which  he  was  indicted  was  committed,  he  was,  and  still  con- 
tinued to  be,  a  deputy  collector  of  internal  revenue  of  the  United 
States ;  that  the  act  for  which  he  was  indicted  was  done  in  his  own 
necessary  self-defence  while  engaged  in  the  discharge  of  the  duties 
of  said  office,  and  what  was  done  in  the  premises  was  done  under 
and  by  right  of  said  office;  that  it  was  his  duty  as  such  officer  to 

^  Rev.  Stat.  ^  643.  held  to  be  constitutional  in  Tennessee 

2  Rev.  Stat.  I  643.    This  statute  was    v.  Davis,  100  U.  S.  725. 


164  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

seize  illicit  distilleries  and  the  apparatus  used  for  the  illicit  and 
unlawful  distillation  of  spirits,  and  that  while  so  engaged  in  enforc- 
ing his  duty  and  the  law,  he  was  assaulted  and  fired  upon  by  a 
number  of  armed  men,  and  in  defence  of  his  life  he  returned  the 
fire,  which  was  the  offence  mentioned  in  the  indictment;  it  was  heM 
that  this  was  a  sufficient  statement  of  the  nature  of  the  case  to 
require  a  removal,  and  that  the  circuit  court  to  which  it  was 
removed  had  jurisdiction  to  try  the  case.^ 

If  the  cause  is  a  civil  suit  against  any  of  the  persons  named  in 
the  statute,  the  petition  should  show  this  fact  and  the  ground  upon 
which  the  right  of  removal  is  based,  as  provided  by  the  statute,^ 

It  has  been  held  that  the  post-office  laws  of  the  United  States  are 
revenue  laws  Avithin  the  meaning  of  the  statute  providing  for  the 
removal  of  causes  against  an  officer  for  an  act  done  under  the  rev- 
enue laws  of  the  United  States.  And  if  a  suit  is  brought  in  a  state 
court  against  a  postmaster  for  a  wrongful  refusal  to  deliver  a  letter 
the  latter  would,  under  the  provisions  of  section  643,  be  entitled  to  a 
removal  of  the  same  to  the  proper  circuit  court.'  So,  an  action  brought 
in  a  state  court  against  a  United  States  collector  of  customs  to  recover 
damages  for  alleged  slanderous  words,  spoken  while  he  was  in  the 
discharge  of  his  duty  and  relating  to  it,  is  removable.*  But  a  suit 
against  a  commissioner  of  a  circuit  court  of  the  United  States,  to 
recover  back  money  alleged  to  have  been  illegally  exacted  of  the 
plaintiff,  or  a  suit  against  an  assistant  treasurer  of  the  United  States 
to  recover  the  value  of  bonds  alleged  to  be  unlawfully  detained  by 
him,  is  not  suit  against  an  officer  appointed  under  or  acting  by 
authority  of  any  revenue  law  of  the  United  States,  and  is  not 
removable  from  a  state  court  on  that  ground.^ 

§  188.  Suits  to  determine  the  right  to  an  olEce  in  certain  cases. — 
It  is  provided  by  statute  that  "whenever  any  person  is  deprived  of 
his  right  to  any  office  except  elector  for  President  or  Vice-President, 
representative  or  delegate  to  Congress,  or  member  of  a  state  legis- 
lature, by  reason  of  the  denial  to  any  citizen  who  may  offer  to  vote 

,  1  Tennessee  v.  Davis,  100  U.  S.  257.  **  Buttner  v.  Miller,  1  Woods  (C.  C.) 

See  also  City  of  Philadelphia  v.  The  620. 

Collector,  5  Wall.  720  ;    Hornthall  v.  '  Benchley  v.  Gilbert,  8  Blatch.  147: 

The  Collector,  9  Wall.  560.  Victor  v.  Cisco,  5  Blatch.   128.     See 

*  Branches  V.  Schell,  4  Blatch.  257.  also  Pavton  v.  Bliss,  1  Woolw.  (C.  C.) 

^  Warner  v.  Fowler,  4  Blatch.  311;  170. 
United  States  v.  Bromley.  1 2  How.  88. 


CIRCUIT    COURTS.  165 

of  the  right  to  vote,  on  account  of  race,  color  or  previous  condition 
of  servitude,  his  right  to  hold  and  enjoy  such  office  and  the  emolu- 
ments thereof  shall  not  he  impaired  bj  such  denial,  and  the  person 
so  defeated  or  deprived  may  bring  any  appropriate  suit  or  proceed- 
ing to  recover  possession  of  such  office  ;  and  in  cases  where  it  appears 
that  the  sole  question  touching  the  title  to  such  office  arises  out  of 
the  denial  of  the  right  to  vote  to  citizens  who  so  offered  to  vote,  on 
account  of  race,  color  or  previous  condition  of  servitude,  such  suit 
or  proceeding  may  be  instituted  in  the  circuit  or  district  court  of  the 
United  States  of  the  circuit  or  district  in  which  such  person  resides." 
This  jurisdiction  is  made  concurrent  with  the  state  courts.^ 

If  such  a  suit  should  be  instituted  in  a  state  court,  this  section 
providing  for  the  removal  of  causes  would  entitle  the  defendant  to 
a  removal  to  the  next  circuit  court  to  be  held  in  the  district  where 
the  suit  is  pending,  on  a  proper  application  to  the  court  therefor. 
But  the  original  jurisdiction  of  the  circuit  court  in  such  cases,  as 
well  as  that  acquired  by  removal  from  a  state  court,  depends  upon 
the  deiaial  of  certain  parties  the  right  to  vote,  and  is  limited  to  those 
actions  for  the  recovery  of  title  to  an  office  of  which  the  plain- 
tiff has  been  deprived,  by  a  denial  of  the  right  to  vote  on  account 
of  race,  color  or  previous  condition  of  servitude.  Therefore,  the 
circuit  court  would  have  no  jurisdiction  of  a  cause  to  recover  an 
office  into  which  the  plaintiff  had  been  inducted  after  an  election, 
but  from  which  he  had  been  subsequently  ejected  by  legal  pro- 
ceedings.^ 

§  189.  Process  of  attachment,  injunction,  etc.,  not  affected  by  re- 
moval.— The  act  provides  :  "  That  when  any  suit  shall  be  removed 
from  a  state  court  to  a  circuit  court  of  the  United  States,  any 
attachment  or  sequestration  of  the  goods  or  estate  of  the  defendant 
had  in  such  suit  in  the  state  court  shall  hold  the  goods  or  estate 
so  attached  or  sequestered  to  answer  the  final  judgment  or  decree 
in  the  same  manner  as  by  law  they  would  have  been  held  to  answer 
final  judgment  or  decree  had  it  been  rendered  in  the  court  in  which 
such  suit  had  been  commenced ;   and  all  bonds,   undertakings  or 

'  Rev.  Stat.  tit.  "  The  Elective  Fran-  ^Johnson  r.  Jurael,  3    "Woods   69. 

chise,"  1 2010;  Const.  15th  art.  of  Am.;  Special  provision  is  made  for  the  re- 

Ex parte  Warmouth,  17  Wall.  64.    See  moval  of  personal  actions  brought  by 

also  Ex  parte  Siebald,  100  U.  S.  371 ;  an  alien  aijainst  a  citizen  of  a   state, 

Ex  parte  Lange,  18  Wall.  163 ;  Ex  parte  or  an  officer  of  the  United  States.    See 

Parks,  93  U.  S.  IS.  Kev.  Stat.  |  |-.44. 


166  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

security  given  bj  either  party  in  such  suit  prior  to  its  removal 
shall  remain  valid  and  eiFectual  notwithstanding  such  removal ;  and 
all  injunctions,  orders  and  other  proceedings  had  in  such  suit  prior 
to  its  removal  shall  remain  in  full  force  and  effect  until  dissolved 
or  modified  by  the  court  to  which  such  suit  shall  be  removed."^ 

Under  this  provision  the  circuit  court  takes  the  suit  precisely  in 
the  state  and  condition  it  was  in  when  sent  from  the  state  court, 
and  any  action  of  the  state  court,  or  record  made  by  it,  will  be  re- 
garded the  same  as  though  the  suit  had  been  originally  commenced 
in  the  circuit  court,  and  the  same  action  and  record  there  made.^ 
The  proceedings  of  the  state  court  are  in  no  particular  vacated  by 
the  removal,  and  matters  disposed  of  by  it  cannot  be  reconsidered  by 
the  circuit  court,  the  judgment  of  the  state  court  being  conclusive 
as  to  them.^ 

§  190.  "When  a  suit  may  be  dismissed  or  remanded. — The  act  of 
1875  provides  that  the  circuit  court  may,  in  case  of  the  removal  of 
a  suit  thereto  from  a  state  court,  dismiss  or  remand  the  suit  to  the 
state  court.  Section  5  of  that  act  provides  :  "  That  if  in  any  suit 
commenced  in  the  circuit  court,  or  removed  from  a  state  court  to  a 
circuit  court  of  the  United  States,  it  shall  appear  to  the  satisfaction 
of  said  circuit  court,  at  any  time  after  said  suit  has  been  brought  or 
removed  thereto,  that  such  suit  does  not  really  and  substantially  in- 
volve a  dispute  or  controversy  properly  within  the  jurisdiction  of 
said  circuit  court,  or  that  the  parties  to  said  suit  have  been  im- 
properly or  collusively  made  or  joined,  either  as  plaintiffs  or  de- 
fendants, for  the  purpose  of  creating  a  case  cognizable  or  removable 

^  Act  of  March  3,  1875,  |  4.     This  that  injunctions  were  not  within  the 

provision  would  seem  to  repeal,  by  im-  saving  clause   of  the  act,    and   were 

plication,  section  646  of  the  Revised  ipso  facto    dissolved     on     removal  : 

Statutes.  Hatch  v.  Chicago,  etc.,  R.  Co.,  6  Blatch. 

^  Section  6  of  the  act  of  1875  pro-  105.  The  fourth  section  of  the  act  of 
vides  :  "  That  the  circuit  court  of  the  1875,  however,  expressly  provides  that 
United  States  shall,  in  all  suits  re-  they,  as  well  as  all  orders  and  other 
moved  under  the  provisions  of  this  proceedings,  shall  remain  in  full  force. 
act,  proceed  therein  as  if  the  suit  had  So  it  was  held  that  a  motion  to  dis- 
heen  originally  commenced  in  said  solve  an  attachment  might  be  made 
circuitcourt,  and  the  same  proceedings  after  removal,  although  the  same  mo- 
had  been  taken  in  such  suit  in  said  tion  had  been  passed  upon  by  the 
circuit  court  as  shall  have  been  had  state  court :  Garden  City  Man.  Co.  v. 
therein  in  said  state  court  prior  to  its  Smith,  1  Dill.  305.  See  also  Carring- 
removal."  This  would  prevent  any  ton  v.  Florida  R.  Co.,  9  Blatchford 
reconsideration  of  any  question  passed  467,  as  to  proper  practice  in  the  cir- 
upon  by  the  state  court.  cuit  court  on  motions  to  dissolve  in- 

^  Duncan  v.  Grigan,  101  U.  S.  810.  junctions. 
Under  the  act  of  1806   it  was  held 


CIRCUIT    COURTS.  167 

under  this  act,  the  said  circuit  court  shall  proceed  no  further  therein, 
but  shall  dismiss  the  suit,  or  remand  it  to  the  court  from  which  it 
was  removed,  as  justice  may  require,  and  shall  make  such  order  as 
to  costs  as  shall  be  just ;  but  the  order  of  said  circuit  court  dis- 
missing or  remanding  said  cause  to  the  state  court  shall  be  review- 
able by  the  Supreme  Court,  on  writ  of  error  or  appeal,  as  the  case 
may  be." 

If  it  is  manifest  from  the  pleadings  in  a  suit  originally  brought 
in  a  circuit  court,  or  from  the  petition  for  removal  thereto  from  a 
state  court,  that,  either  for  want  of  proper  subject-matter,  or  want 
of  proper  parties,  or  want  of  proper  citizenship  of  the  parties,  to 
confer  jurisdiction,  the  circuit  court  has  no  jurisdiction  of  the  cause, 
it  could,  without  request,  dismiss  or  remand  it  as  the  case  might 
require.  But  the  usual  practice  is  to  call  the  attention  of  the 
court  to  these  defects  by  demurrer  or  motion,  as  the  case  may  re- 
quire. When  a  suit  is  originally  instituted  in  the  circuit  court,  or 
brought  there  from  a  state  court,  it  is  always  a  proper  subject  of 
of  inquiry,  whether  the  court  has  or  can  take  jurisdiction.^ 

If  the  petition  and  bond  for  the  removal  are  regular  and  suffi- 
cient on  their  face,  then  the  state  court  has  no  further  jurisdiction, 
and  it  has  no  discretion  in  the  matter.^ 

If  a  motion  is  made  to  remand  the  suit  to  the  state  court,  this 
admits  the  averments  of  the  petition  for  the  removal,  like  a  demur- 
rer to  a  pleading  ;  and  if  in  either  case  these  do  not  show  the  juris- 
diction of  the  court,  the  cause  should  be  remanded  or  dismissed.^ 
And,  as  we  have  noticed,  if  the  bond  is  manifestly  defective,  as 
where  no  sum  for  the  penalty  is  inserted  in  it,  this  would  be 
ground  for  remanding  the  cause  to  the  state  court  from  whence  it 
came.* 

If  there  appears  to  be  no  defect  in  the  papers,  and  they  conform 
to  the  requirements  of  the  statute,  issue  may  be  taken  in  the  circuit 
court  on  the  facts  stated  in  the  petition  as  the  ground  for  the  re- 

^  Railroad  Company  v.  McKinley,  ^  Buttner  v.  Miller,  1  Woods  (C.  C.) 

99  U.  S.  147.  620 ;  Dennistoun  v.  Draper,  5  Blatch. 

•^  Fisk  V.  Union  Pac.  R.  Co.,  6  Blatch.  336  ;  Heath  v.  Austin,  1 2  Blatch.  320  ; 

362  ;  Hatch  u.  Chicago,  R.  I.  and  P.  R.  Galvin  v.   Boutwell,    9  Blatch.   470; 

Co.,  6  Blatch.   105  ;    Railroad  Co.  v.  Wood  v.  Mathews,  2  Blatch.  370  ;  Os- 

Ramsey,  22  Wall.  322  ;  Insurance  Co.  good  v.  Chicago,  etc.,  R.  Co.,  6  Biss. 

V.   Dunn,   19  Wall.  214;    Akerly  v.  330. 

A^ilas,  2  Biss.  110  ;  Kanouse  v.  Martin,  *  Burdick  v.  Hale,  7  Biss.  96. 
15  How.  198  ;  Osgood  v.  Chicago  and 
C.  R.  Co.,  6  Biss.  330. 


168     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

moval,  and  the  juristiiction  of  tlie  court  would  then  be  determined 
on  a  final  hearing.^ 

§  191.  "When  a  copy  of  the  record  should  be  filed  ;  refusal  of  the 
clerk  to  furnish  it ;  -when  a  -writ  of  certiorari  •will  issue- — Ample 
provision  is  made  to  enable  a  party  entitled  thereto  to  procure 
a  copy  of  the  record  on  the  removal  of  a  cause,  and  to  punish 
the  clerk  of  a  state  court  who  shall  refuse  to  furnish  one  on 
a  proper  application  made  therefor.  Section  7  of  the  act  of 
March  3,  1875,  provides:  "  That  in  all  causes  removable  under  this 
act,  if  the  term  of  the  circuit  court  to  which  the  same  is  removable, 
then  next  to  be  holden,  shall  commence  within  twenty  days  after 
filing  the  petition  and  bond  in  the  state  court  for  its  removal,  then 
he  or  they  who  apply  to  remove  the  same  shall  have  twenty  days 
from  such  application  to  file  said  copy  of  record  in  said  circuit 
court  and  enter  an  appearance  therein,  and  if  done  within  said 
twenty  days,  said  filing  and  appearance  shall  be  taken  to  satisfy  the 
said  bond  in  that  behalf ;  that  if  the  clerk  of  the  state  court  in 
which  any  such  cause  shall  be  pending  shall  refuse  to  any  one  or 
more  of  the  parties  or  persons  applying  to  remove  the  same  a  copy 
of  the  record  therein,  after  a  tender  of  the  legal  fees  for  such  copy, 
said  clerk  so  offending  shall  be  deemed  guilty  of  a  misdemeanor, 
and  on  conviction  thereof  in  the  circuit  court  of  the  United  States 
to  which  said  action  or  proceeding  was  removed,  shall  be  punished 
by  imprisonment  not  more  than  one  year,  or  by  a  fine  not  exceed- 
ing $1000,  or  both  in  the  discretion  of  the  court.  And  the  circuit 
court  to  which  any  cause  shall  be  removable  under  this  act  shall 
have  power  to  issue  a  writ  of  certiorari  to  said  state  court,  com- 
manding said  state  court  to  make  return  of  the  record  in  any  such 
cause  removed  as  aforesaid,  or  in  which  any  one  or  more  of  the 
plaintiffs  or  defendants  have  complied  with  the  provisions  of  this 
act  for  the  removal  of  the  same,  and  enforce  said  writ  according  to 
law ;  and  if  it  shall  be  impossible  for  the  parties  or  persons  re- 
moving an}^  cause  under  this  act,  or  complying  with  its  provisions 
for  the  removal  thereof,  to  obtain  such  copy,  for  the  reason  that 
the  clerk  of  the  state  court  refuses  to  furnish  a  copy  on  payment  of 
legal  fees,  or  for  any  other  reason,  the  circuit  court  shall  make  an 
order  requiring  the  prosecution  in  any  such  action  or  proceeding  to 

1  Field  w.  Lownsdale,  1  Deady  288  ;     243;    Heath    v.    Austin,    12    Blatch. 
Fisk  V.  Union   Pac.  R.  Co.,  8  Blatch.     320. 


CIRCUIT   COURTS.  169 

enforce  forfeiture  or  recover  the  penalty  as  aforesaid,  to  file  a  copy 
of  the  paper  or  proceeding  by  which  the  same  was  commenced, 
within  such  time  as  the  court  may  determine,  and  in  default  thereof 
the  court  shall  dismiss  the  said  action  or  proceeding ;  but  if  said 
order  shall  be  complied  with,  then  said  circuit  court  shall  require 
the  other  party  to  plead,  and  said  action  or  proceeding  shall  proceed 
to  final  judgment;  and  the  said  circuit  court  may  make  an  order 
requiring  the  parties  thereto  to  plead  de  novo^  and  the  bond  given, 
conditioned  as  aforesaid,  shall  be  discharged  so  far  as  it  requires  a 
copy  of  the  record  to  be  filed  as  aforesaid." 

§  192.  Issues  of  fact,  -when  tried  by  a  jury  ;  v^hen  by  the  court. — 
The  trial  of  issues  of  fact  in  the  circuit  courts  is  required  to  be  by 
jury ;  except  in  cases  in  equity  and  of  admiralty  and  maritime 
jurisdiction,  and  in  cases  of  a  civil  nature  where  the  parties  or 
their  attorneys  file  a  stipulation  in  writing  with  the  clerk  of  the 
court,  waiving  a  jury,  in  which  case  the  suit  may  be  tried  by  the 
court,  and  the  finding  of  the  court  upon  the  facts,  which  may  be 
either  general  or  special,  has  the  same  effect  as  the  verdict  of  a 
jury.^  But  under  former  statutes  on  the  subject,  parties,  by  con- 
sent, could  waive  the  trial  of  issues  of  fact  in  civil  cases  by  a  jury, 
in  the  circuit  and  district  courts  of  the  United  States,  and  submit 
both  the  law  and  the  facts  to  the  court,  in  conformity  with  the 
practice  of  the  courts  of  the  state  where  the  trial  was  had.^  When 
the  record  showed  that  an  issue  was  ''  called  for  trial  by  the  court, 
the  jury  having  been  waived  in  writing,"  the  Supreme  Court  held 
this  conclusive  that  the  requisite  agreement  had  been  made,  in  the 
absence  of  anything  to  the  contrary.^ 

No  review  in  the  Supreme  Court  can  be  had  upon  writ  of  error 
in  such  a  case,  unless  there  is  a  special  finding  from  the  evidence 
of  ultimate  facts  by  the  court.  If  the  court  finds  generally  for  one 
side  or  the  other,  instead  of  making  a  special  finding  of  the  facts, 
there  can  be  no  redress  for  error  in  that  respect,  although  there 
would  be  for  the  wrongful  rejection  or  admission  of  evidence  during 
the  trial.*     If  the  facts  are  found  by  the  court,  to  which  exception 

J  Rev.  Stat.  l\  648,  649,  700.     In  v.  Frontin,   18   How.  135.      See  also 

cases  of  admiralty  and  maritime  juris-  Suydam  v.  Williamson,  20  How.  432  ; 

diction,  on  the  instance  side  of  the  Campbell  xi.  Boyreau,  21  How,  223; 

court,  the  court  should  find  and  state  Saulet    v.    Shepherd,    4   Wall.    502 ; 

the  facts  and  conclusions  of  law  sepa-  Silsby  v.  Fort,  14  How.  219. 

rately  :  act  of  February  16,  1875.  I  1.  »  Feleitas  v.  Cockrem,  101  U.  S.  301. 

■M3  U.  S.  Stat.  501  (1845);  Guild  *  Dirst  zj.  Morris,   14  Wall.    484; 


170  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

is  taken  and  judgment  has  been  rendered  upon  them,  the  question 
for  the  Supreme  Court  on  error  would  be,  whether  the  facts  found 
were  sufficient  to  support  the  judgment.^ 

The  provision  authorizing  a  waiver  by  the  parties  of  trial  by 
jury  relates  to  the  circuit  courts  only,  and  does  not  extend  to  dis- 
trict courts.  But  we  have  noticed  that  the  right  of  trial  by  jury 
of  issues  of  fact  in  the  district  court  might  be  waived  by  the  parties 
to  a  suit.^ 

§  193.  Division  of  opinion  in  civil  and  criminal  causes ;  certifi- 
cate of  division. — If  there  is  a  difference  of  opinion  between  the 
judges  in  a  civil  cause  or  proceeding  in  the  circuit  court,  held  by  a 
circuit  justice  and  a  circuit  judge  or  a  district  judge,  or  by  a  circuit 
judge  and  a  district  judge,  as  to  any  matter  or  thing  to  be  decided, 
ruled  or  ordered  by  the  court,  the  opinion  of  the  presiding  justice 
or  judge  will  be  considered  the  opinion  of  the  court  for  the  time 
being  ;^  but  whenever  any  question  occurs  on  the  trial  or  hearing 
of  a  criminal  proceeding  before  the  court  upon  which  the  judges  are 
divided  in  opinion,  the  point  upon  which  they  disagree  must,  on  the 
request  of  either  party  or  their  counsel,  be  stated  under  the  direc- 
tion of  the  judges,  during  the  same  term  of  court,  and  certified, 
under  the  seal  of  the  court,  to  the  Supreme  Court  at  their  next  ses- 
sion. There  may  be  further  proceedings  in  the  case  in  the  circuit 
court  if  they  may  be  had  without  prejudice  to  the  merits  of  it ;  but 
where  the  question  relates  to  the  punishment  or  imprisonment  of  a 
party,  no  imprisonment  can  be  allowed  or  punishment  inflicted.* 

And  when  a  final  judgment  or  decree  is  entered  in  any  civil  suit 
or  proceeding  in  any  circuit  court,  held  by  a  circuit  justice  and  a 
circuit  judge  or  a  district  judge,  or  by  a  circuit  judge  and  a  district 
judge,  and  on  the  trial  or  hearing  thereof  any  question  has  occurred 
upon  which  the  opinions  of  the  judges  were  opposed,  the  point  upon 
which  they  disagree  must  during  the  same  term  be  stated  under  the 

Gillman  v.  111.  and  Miss.  Tel.  Co.,  91  ^  Blair  v.  Allen,  3  Dill.  101.  Under 

U.  S.  603  ;  Insurance  Co.  v.  Tweed,  7  the  act  of  1845,  which  also  provided 

Wall.  44;  Coddingtoa  v.  Richardson,  a  right  of  trial  by  jury  of  issues  of 

10  Wall.  516.  fact  in  the  district  courts,  it  was  held 

^  Jennisons W.Leonard, 21  Wall.  302;  that  parties  might  waive  a  trial   by 

Dennistoun  y.  Stewart,  18  How.  565 ;  jury,  and    submit   the  cause   to   the 

United  States  v.  City  Bank,  19  IIow.  court  to    try  it   even    on   an   agreed 

385.    See  also  Suydam  v.  Williamson,  statement  of  facts:  Henderson's  Dis- 

20  How.  432  ;  Basset  v.  United  States,  tilled  Spirits,  14  AVall.  40. 

9  Wall.  38 ;  Copelin  v.  Insurance  Co.,  ^  Rev.  Stat.  §  650. 

9  Wall.  461.  *  Rev.  Stat,  g  651. 


CIRCUIT    COURTS.  171 

direction  of  the  judges  and  certified,  and  such  certificate  is  required 
to  be  entered  of  record.^ 

For  form  of  certificate,  see  post^  Form  No.  259. 

§  194.  The  point  of  division  must  be  distinctly  stated. — We  shall 
consider  in  another  place  the  practice  and  procedure  in  the  Supreme 
Court  on  a  certificate  of  division  of  opinion  by  the  judges  of  a  circuit 
court ;  but  it  may  be  proper  here  to  state  that  the  point  upon  which 
the  difference  occurs  should  be  distinctly  stated.  If  the  division  of 
opinion  is  on  a  demurrer  to  an  indictment,  it  is  not  sufficient  to  cer- 
tify that  they  were  divided  in  opinion  whether  the  indictment  should 
or  should  not  be  sustained,  but  the  particular  point  of  disagreement 
should  be  stated."^  The  same  doctrine  applies  to  demurrers  in  civil 
suits  ^  and  to  motions  to  quash  indictments.^  Nor  will  the  Supreme 
Court  take  cognizance  of  a  cause  divided  into  points  pro /or?wa,  and 
certified  without  an  actual  division,  or  of  a  division  of  opinion  upon 
points  merely  hypothetical.^ 

§  195.  The  question  must  relate  to  a  point  of  law  and  not  of  fact. — 
A  whole  case  cannot  be  sent  up  on  a  certificate  of  division  of  opinion, 
as  where,  in  a  case  of  chancery,  the  certificate  stated  that  the  judges 
were  unable  to  agree  in  opinion  as  to  which  party  was  entitled  to  a 
decree,  one  judge  being  of  opinion  favorable  to  the  complainant 
and  the  other  favorable  to  the  defendant,  and  the  record  of  the 
whole  case  was  presented  to  the  Supreme  Court.  In  such  a  case  the 
Supreme  Court  will  dismiss  it  for  the  want  of  jurisdiction.^  The 
question  presented  must  be  one  of  law  and  not  of  fact,  and.  not  a 
mixed  one  of  law  and  fact.^  And  the  Supreme  Court  will  dismiss  a 
certified  cause  for  want  of  jurisdiction,  where  the  question  to  be  de- 
termined requires  an  examination  of  the  evidence  in  the  record.^ 

§  196.  Where  the  point  certified  is  one  of  practice  or  discretion. — 
If  the  question  about  which  there  is  a  division  of  opinion  relates  to 

1  Rev.  Stat.  U  652,  693.     See  Wey-  ^  Webster  v.  Cooper,  10  How.  54  ; 

auwega  v.  Ayling,  99  U.  S.  112.  Ex  parte  GovdiOn,  1  Black.  503;  United 

"^  The   United    States  v.   Brings,    5  States  v.  Stone,  14  Pet.  524 ;  Luther 

How.  208  ;    United  States  v.  Bailey,  v,  Borden,  7  How.  1. 

9  Pet.  272.  6  Sadler   v.   Hoover,  7   How.  646  ; 

^  Havemeyer  v.    Iowa    County,    3  Nefemith  v.  Shelden,  6  How.  41. 

Wall.  294;    White  v.  Turk,   12  Pet.  '  Dennistoun  v.  Stewart,   18   How. 

238  ;  Adams  v.  Jones,  12  Pet.  213.  565  ;  Kennedy  v.  Bank,  8  How.  610  ; 

*  United   States   v.   Rosenburgh,  7  United  States  v.  City  Bank,  19  How. 

Wall.  580  ;  Davis  v.  Braden,  10  Pet.  385  ;  Daniels  v.  Railroad  Co.,  3  Wall. 

288.     But   see   qualification   of   doc-  250;  Silliman  W.Hudson  River  &  C. 

trine :    United    States  v.    Chicago,   7  Co.,  1  Black  582. 

How.  185;  Leland  v.  Wilkinson,   10  «  Brobst  v.  Brobst,  4  Wall.  2. 
Pet.  294. 


172  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

a  matter  of  practice  in  the  circuit  court,  and  this  rests  upon  the 
exercise  of  a  sound  discretion  in  the  application  of  the  rules  which 
regulate  the  practice  in  the  particular  case,  the  Supreme  Court  will 
not  entertain  the  cause. ^ 

§  197.  The  Supreme  Court  can  act  only  on  the  point  presented  in 
the  certificate  of  division. — The  Supreme  Court,  on  a  certificate  of 
division  of  opinion,  will  only  consider  the  point  stated  in  the  certifi- 
cate. Nothing  can  come  before  that  court  for  its  consideration  in 
such  a  case  except  such  single  and  definite  questions  as  shall  have 
actually  arisen  in  the  circuit  court  and  become  the  subject  of  disa- 
greement by  the  judges  thereof.^  If  the  division  of  opinion  arises 
on  some  question  subsequent  to  the  decision  of  the  causes  in  the 
circuit  court,  as  where  the  judges  disagree  as  to  the  amount  of  a 
bond  for  security  to  be  given  by  a  party  on  applying  for  a  writ  of 
error,^  the  Supreme  Court  would  have  no  cognizance  of  it.  And  if 
a  certificate  of  division  is  certified  between  the  circuit  and  district 
judges,  when  the  latter  had  no  authority  to  sit  in  the  case,  this 
would  not  give  the  Supreme  Court  jurisdiction.* 

§  198.  Appellate  jurisdiction  of  the  circuit  court  in  criminal  cases. 
— Besides  the  jurisdiction  of  the  circuit  courts  which  has  hereto- 
fore been  considered,  there  was  conferred  by  the  act  of  March  3, 
1879,  an  appellate  jurisdiction  in  certain  criminal  cases.  Section 
1  of  that  act  provides:  "The  circuit  court  of  each  judicial  dis- 
trict shall  have  jurisdiction  of  writs  of  error  in  all  criminal  cases 
tried  before  the  district  court  where  the  sentence  is  imprisonment, 
or  where,  if  fine  only,  the  fine  shall  exceed  the  sum  of  three  hun- 
dred dollars ;  and  in  such  case  a  respondent  feeling  himself  aggrieved 
by  a  decision  of  a  district  court  may  except  to  the  opinion  of  the 
court,  and  tender  his  bill  of  exceptions,  which  shall  be  settled  and 
allowed  according  to  the  truth,  and  signed  by  the  judge,  and  it  shall 
be  a  part  of  the  record  of  the  case." 

Section  2  provides  for  a  writ  of  error  from  the  judgment  of 
the  district  court  within  one  year,  and  for  a  bond  with  sureties  as 

1  Wiggins  V.  Gray,  24  How.  303 ;  v.  Southard,  10  Wh.  1  ;  Saunders  v. 
Smith    V.    Vaughan,    10    Pet.    366 ;     Gould,  4  Pet.  392. 

Packer  v.  Nixon,  10  Pet.  411  ;  Davis  =*  Devereux  v.  Marr,  12  Wh.  212  ; 
c.  Braden,  10  Pet.  288.  Bank  v.  Green,  6  Pet.  26  ;  U.  S.  v.  Dan- 

2  Perkins    v.    Hart,   11  Wh.    237;     iel,  6  Wh.  548. 

Kennedy  v.  Georgia  State  Bk.,  8  How.         *  United  States  v.  Lancaster,  5  Wh. 
611  ;  Ogle  V.  Lee,  2  Cr.  33  ;    AYard  v.     344. 
Chamberlain,  2  Blatch.  430  ;  Wyman 


CIRCUIT   COURTS.  173 

follows  :  "Within  one  year  next  after  the  end  of  the  term  at  which 
such  sentence  shall  be  pronounced,  and  not  after,  the  respondent 
may  petition  for  a  writ  of  error  from  the  judgment  of  the  district 
court  in  the  cases  named  in  the  preceding  section,  which  petition 
shall  be  presented  to  the  circuit  court  or  circuit  judge  in  term  or 
vacation,  who,  on  consideration  of  the  importance  and  diflficulty  of 
the  questions  presented  in  the  record,  may  allow  such  writ  of  error, 
and  may  order  that  such  writ  shall  operate  as  a  stay  of  proceedings 
under  the  sentence ;  but  the  allowance  of  such  writ  shall  not  so 
operate  without  such  orders.  The  judge  or  justice  allowing  such 
writ  of  error  shall  take  a  bond  with  suflScient  sureties  that  the  same 
shall  be  prosecuted  to  effect,  and  that  the  respondent  shall  abide  the 
judgment  of  the  circuit  court  thereon.  And  if  the  writ  shall  be 
allowed  to  operate  as  a  stay  of  proceedings  under  the  sentence,  bail 
may  in  like  manner  be  taken  for  the  appearance  of  the  respondent 
at  the  term  of  the  circuit  court  to  which  such  writ  of  error  shall  be 
returnable,  and  that  he  will  not  depart  without  leave  of  court." 

§  199.  Return  and  proceedings  thereon. — Section  3  of  said  act 
further  provides:  "Such  writ  of  error  so  allowed  shall  be  re- 
turnable to  the  next  regular  term  of  the  circuit  court  for  the  dis- 
trict, and  shall  be  served  on  the  district  attorney  of  the  United 
States  for  such  district.  The  circuit  court  may  advance  all  such 
writs  of  error  on  its  docket  in  order  that  speedy  justice  may  be 
done.  And  in  case  of  the  affirmance  of  the  judgment  of  the  dis- 
trict court,  the  circuit  court  shall  proceed  to  pronounce  final  sen- 
tence and  to  award  execution  thereon;  but  if  such  judgment  shall 
be  reversed,  the  circuit  court  may  proceed  with  the  trial  of  said 
cause  de  novo,  or  remand  the  same  to  the  district  court  for  further 
proceedings." 

§  200.  Writ  of  error  or  appeal  in  case  of  the  death  of  a  party. — 
Previous  to  the  act  of  March  3,  1875,  there  was  no  adequate 
remedy,  by  the  representatives  of  deceased  persons  by  writ  of  error 
or  appeal,  where  the  deceased  was  a  party  to  a  final  judgment  or 
decree  rendered  in  a  circuit  court,  and  died  before  the  two  years 
allowed  for  taking  an  appeal  or  bringing  a  writ  of  error  had  expired.' 
But  the  ninth  section  of  that  act  provides  in  such  cases  as  follows : 
"That  whenever  either  party  to  a  final  judgment  or  decree,  which 
has  been  or  may  be  rendered  in  any  circuit  court,  has  died  or  shall 

1  Rev.  Stat.  §  1008. 


174  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

die  before  the  time  allowed  for  taking  an  appeal  or  bringing  a  writ 
of  error  has  expired,  it  shall  not  be  necessary  to  revive  said  suit  by 
any  formal  proceeding  aforesaid.  The  representative  of  such 
deceased  party  may  file  in  the  office  of  the  clerk  of  such  circuit 
court  a  duly  certified  copy  of  his  appointment,  and  thereupon  may 
enter  an  appearance  or  bring  writ  of  error  as  the  party  he  represents 
might  have  done.  If  the  party  in  whose  favor  such  judgment  or 
decree  was  rendered  has  died  before  appeal  taken  or  writ  of  error 
brought,  notice  to  his  representative  shall  be  given  from  the  Su- 
preme Court,  as  provided  in  case  of  the  death  of  a  party  after  appeal 
taken  or  writ  of  error  brought." 


CHAPTER  IX. 

CIRCUIT  COURTS — PRACTICE  AND  PROCEDURE  IN  SUITS  AT  LAW. 

§  201.  Practice  and  procedure  in  other  than  equity  causes. — The 
practice,  pleadings  and  forms  and  modes  of  procedure  in  civil 
causes,  other  than  those  in  equity  and  admiralty,  in  the  circuit 
and  district  courts  must  conform  as  near  as  may  be  to  the 
practice,  pleadings  and  forms  and  modes  of  proceeding  existing  at 
the  time  in  like  causes  in  the  courts  of  record  of  the  state  within 
which  such  circuit  or  district  courts  are  held.^  But  the  jurisdiction 
of  the  circuit  court  is  not  in  any  respect  extended  by  the  provisions 
of  the  section  last  cited.^ 

The  practice,  pleadings,  forms  and  mode  of  proceedings  in  civil 
causes  embraced  in  this  section  are  those  established  by  the  statutes 
of  the  state,  and  not  modes  of  procedure  established  by  judicial 
construction  of  the  common  law  remedies  ;  although  the  term  "prac- 
tice "  embraces  rules  adopted  to  facilitate  the  transaction  of  busi- 
ness before  the  court  in  a  proper  and  orderly  manner,  as  rules  of 
practice  when  framed  by  the  courts  or  embodied  in  statutes.  But 
no  construction  should  be  given  to  a  statute  of  the  state  relating  to 
practice  or  procedure,  to  affect  the  substjintial  rights  of  any  suitor 
secured  by  act  of  Congress.^ 

The  language  of  the  statute  is  that  the  practice,  pleadings,  forms 
and  modes  of  proceeding  "  shall  conform  as  near  as  may  be  to  the 
practice,  pleadings  and  forms  and  modes  of  proceeding  existing  at  the 
time  in  the  courts  of  record  of  the  state."  The  words  "  as  near  as  may 
be  "  are  quite  indefinite,  but  they  were  perhaps  wisely  conceived,  as 
they  give  the  judges  some  latitude  in  their  construction,  and  enable 
them  to  reject  any  rule  or  provision  of  the  state  statutes  relating  to 
practice  or  procedure  which  in  their  judgment  would  encumber  the 
proper  administration  of  the  law  or  defeat  the  ends  of  justice.* 

1  Rev.  Stat.  ?  914.  147 ;  Republic  Ins.  Co.  v.  Williams,  3 

2  Bath  County  v.  Amy,  13  Wall.  Biss.  370;  Nudd  v.  Burrows,  91  U. 
244;   Main  v.   Second  Nat.  Bank,  6     S.  426. 

Biss.  26.  *  Indianapolis  &  St.  L.  R.  R.  Co.  v. 

3  Butler  V.  Young,  5  C.  L.  N.  146 ;  Horst,  93  U.  S.  291  ;  Sandford  v. 
Sandford  v.  Portsmouth,  6  Cent.  L.  J.     Portsmouth,  6  Cent.  L.  J.  147.     The 


176  FEDERAL    PLEADING,    PKACTICE    AND    PROCEDURE. 

If  follows  from  the  provision  of  tlie  statute  under  consideration 
that  the  federal  courts  have  no  authority  by  rules  or  otherwise  to 
prescribe  any  mode  of  practice  or  procedure  in  derogation  of  the 
provisions  of  this  statute  ;  but  where  a  law  of  Congress  has  pointed 
out  a  special  mode  of  procedure  in  relation  to  the  particular  sub- 
ject-matter involved  in  the  proceeding,  the  federal  court  cannot 
adopt  the  forms  and  modes  of  proceeding  of  the  state  courts,  but 
should  follow  the  forms  and  modes  pointed  out  by  the  act.' 

§  202.  The  summons  or  other  original  process  and  service. — The 
original  process  issued  to  the  defendant  at  the  commencement  of  a 
suit  at  law  should  be  signed  by  the  clerk  and  under  the  seal  of  the 
court ;  and  it  should  substantially  comply  with  the  requirements  of 
the  state  law  in  reference  to  original  process  for  the  commencement 
of  a  suit.^  Where  a  state  law  required  that  upon  every  process 
issued  in  an  action  to  recover  a  penalty  or  forfeiture  there  should 
be  endorsed  a  general  reference  to  the  statute  under  which  the  pen- 
alty or  forfeiture  is  claimed,  it  was  held  that  this  provision  should 
be  observed  in  commencing  suits  in  the  federal  courts,  and  that  a 
reference  to  such  statute  should  be  indorsed  upon  the  original  pro- 
cess issued  by  said  courts  in  like  cases. ^ 

In  reference  to  the  service  of  process  it  may  be  said  that  it  is  a 
"mode  of  proceeding"  within  the  meaning  of  the  section  under 
consideration  ;  that  this  should  be  in  accordance  with  the  require- 
ment of  the  state  law,  and  the  federal  courts  can  prescribe  no  other 
mode  of  service.^  The  process  should  run  in  the  name  of  "  The 
President  of  the  United  States,"  and  be  directed  to  the  marshal  of 
the  district,  whose  duty  it-is  to  execute  all  lawful  precepts  directed 
to  liim  and  issued  under  the  authority  of  the  United  States.^  The 
marshals  and  their  deputies  have  in  each  state  the  same  powers  in 
executing  the  laws  and  process  issued  by  the  courts  of  the  United 
States  as  the  sheriffs  and  their  deputies  have  in  such  state  in  exe- 

section  has  no  application  to  cases  in  the  commencement  of  an  action  by  a 

equity  or  admiralty:   Blease  v.  Gar-  summons  issued  in  the  name  of  the 

lington,  92  U.  S.  1.  plaintiff's     attorney,    although    that 

^  Easton  v.  Hodges,  7  Biss.  ?>'1A.  may  be  the  mode  prescribed  by  the 

^  Rev.  Stat.  §  911  ;  Johnson  r.  Hea-  state    law:    Martin    v.   Criscuola,    10 

ley,  9  Ben.  318  ;  Dwight  v.  Meritt,  4  Blatch.  211. 

Fed.  Rep.  614.  *  Perkins  v.  City  of  Watertown,  5 

3  Brown  v.  Pond,  5  Fed.  Rep.  31  ;  Biss.  320. 

Brown  v.  Pond,  5  Fed.  Rep.  41.     The  '  Rev.  Stat.  I  787. 

section  last  cited  does  not  authorize 


CIRCUIT    COURTS — SUITS    AT    LAW.  177 

cuting  the  laws  and  process  of  the  courts  thereof,  and  a  deputy 
marshal  may  execute  process  directed  to  the  marshal.^ 

Original  and  all  other  process  issued  from  the  federal  courts  must 
bear  test  from  the  day  of  such  issue,  and  if  the  marshal  or  his  deputy 
is  a  party  in  any  cause,  the  writs  and  precepts  therein  must  be 
directed  to  such  disinterested  person  as  the  court  or  any  justice  or 
judge  thereof  may  appoint,  and  the  person  thus  appointed  has 
authority  to  execute  and  return  them.^  But  it  has  been  held  that 
subpoenas  and  ordinary  notices  stand  on  different  grounds,  and  that 
they  may  be  served  by  any  person  in  conformity  with  the  statutory 
provisions  of  the  state  within  which  the  cause  is  pending.^ 

§  203.  Jurisdiction  not  acquired  by  attachment  against  a  non- 
resident.— The  questions  recently  presented  to  the  Supreme  Court 
were  whether  jurisdiction  of  the  circuit  court  over  a  non-resident  de- 
fendant could  be  acquired  by  an  attachment  of  property  within  the 
district,  and  whether,  on  the  dismissal  of  a  cause  by  the  circuit 
court  for  the  want  of  jurisdiction  in  such  a  case,  the  Supreme  Court 
ought  by  mandamus  to  compel  the  circuit  court  to  restore  the  cause 
and  proceed  to  try  it.  On  a  motion  to  the  court  for  the  writ  it  was 
refused.*  Under  the  provisions  of  the  act  of  1789  it  was  also  held 
that  the  process  of  foreign  attachment  would  not  confer  jurisdiction 
where  the  defendant  was  not  an  inhabitant  of  nor  served  with  pro- 
cess within  the  district  where  the  suit  was  brought.^ 

§  204.  Service  of  process  may  be  waived. — The  service  of  process 
against  the  person  of  the  defendant  must  be  made  within  the  district 
where  the  court  is  held,  but  if  not  so  served  and  the  defendant  is 
not  a  resident  of  the  district,  he  may  waive  the  necessity  of  such 
service  by  a  voluntary  appearance  to  the  suit  without  objection. 
And  in  such  a  case  the  omission  to  aver  on  the  record  that  the  de- 
fendant is  an  inhabitant  of  the  district  or  found  therein  will  not  be 
fatal,  but  the  regularity  of  the  service  will  be  presumed.^ 

'  Schwabacker  v.  Reilly,  2  Dill.  127 ;  the  Post-Office  Department,  Rev.  Stat. 

James  v.  Jenkins,  Hemp.  187  ;  Rev.  §  924. 

Stat.  §  788.  s  Hollingsworth  v.  Adams,  2  Dall. 

2  Rev.    Stat.   U   912,   922 ;   Admi-  396 ;   Pollard  v.  Dwight,  4  Cr.  4l'l  ; 

ralty  Rule  1.  Fisher   v.  Consequa,   2   Wash.  C.  C. 

»  Schwabacker  v.  Reilly,  2  Dill.  127.  382  ;  Ex  parte  Railroad  Co.,  J  03  U.  S. 

*  Ex  parte  Railroad  Co.,  103  U.  S.  794 ;  ante,  ^  202  ;  post,  §  208. 

794.      But  see   attachments   against  ^  Gracie   v.    Palmer,   8    Wh.    605 ; 

the  property  of  defaulting  or  delin-  Pollard  v.  Dwight,  4  Cr.  421  ;  Toland 

quent    postmasters,    contractors,    or  v.  Sprague,  12  Pet.  300  ;  Levy  v.  Fitz- 

other  officers,  agents  or  employes  of  patrick,  15  Id.  167. 
12 


178     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

§  205.  In  -what  cases  the  several  circuit  and  district  courts  may 
make  their  own  rules  and  orders. — The  circuit  and  district  courts 
may  from  time  to  time,  in  any  manner  not  inconsistent  with  any 
law  of  the  United  States  or  any  rule  prescribed  by  the  Supreme 
Court  of  the  United  States  in  relation  to  the  practice,  procedure 
and  pleadings  in  equity  and  admiralty,  make  rules  and  orders  di- 
recting the  returning  of  writs  and  processes,  the  filing  of  pleadings, 
the  taking  of  rules,  the  taking  and  making  up  of  judgments  by 
default,  and  other  matters  in  vacation,  and  otherwise  regulate  their 
own  practice  as  may  be  necessary  or  convenient  for  the  advance- 
ment of  justice  and  the  prevention  of  delays  in  proceedings  in  said 
courts.^ 

Under  the  section  last  cited  it  is  not  essential  that  the  rules  be 
adopted,  written  rules,  but  rules  recognized  by  a  uniform  mode  of 
procedure  for  a  series  of  years  are  equally  binding  and  become  the 
rules  of  the  court. ^  No  rule  of  a  federal  court,  however,  can  ex- 
clude competent  evidence  which  is  admissible  by  the  general  prin- 
ciples of  law.^  But  under  this  provision  the  circuit  courts  may 
adopt  rules  providing  a  form  for  a  bill  of  exceptions,  requiring 
parties  to  print  their  briefs,  and  for  making  up  the  trial  docket.* 
And  a  court  may  suspend  its  own  rules  or  except  a  particular 
operation  of  them  whenever  the  purposes  of  justice  require  it.^ 

§  200.  Pleading,  practice  and  procedure  to  conform  to  state 
courts. — In  reference  to  the  pleadings,  practice  and  procedure  in 
civil  causes  other  than  those  of  equity  and  admiralty,  the  language 
of  the  statute  is  as  follows :  "  The  practice,  pleadings  and  forms 
and  modes  of  procedure  in  civil  causes  other  than  equity  and  ad- 
miralty causes,  in  the  circuit  and  district  courts,  shall  conform,  as 
near  as  may  be,  to  the  practice,  pleadings  and  forms  and  modes  of 
proceeding  existing  at  the  time  in  like  causes  in  the  courts  of  record 
of  the  state  within  which  such  circuit  or  district  courts  are  held,  any 
rule  of  court  to  the  contrary  notwithstanding."^ 

For  appropriate  forms  in  various  suits  at  law,  see  post,  No.  1, 
and  following. 

1  Rev.  Stat.  |  918.  *  Neff  v.    Pennoyer,    3    Saw.    335; 

2  Duncan  v.  United  States,  7  Pet.  The  Alice  Tainter,  14  Blatch.  225  ; 
435  ;  FuUerton  v.  Bank,  1  Id.  6U4 ;  Pomeroy  v.  State  Bank,  1  Wall.  592. 
Koning  v.  Bayard,  2  Paine  251  ;  Bus-  ^  United  States  i?.  Breitling,  20How. 
sell  V.  Ashley,  Hemp.  540  ;  Sellers  v.  252 ;  Russell  v.  McLellan,  3  W.  &  M. 
Corwin,  5  Ohio  398.  157  ;  Wallace  v.  Clark,  Id.  359. 

»  Patterson  i'.  Winn,  5  Pet.  233.  •*  Rev.  Stat.  I  914. 


CIRCUIT    COURTS — SUITS    AT    LAW.  179 

If  the  original  process  is  substantially  in  compliance  with  the  state 
law  it  will  not  be  set  aside,  but  a  summons  issued  to  the  defendant 
at  the  commencement  of  the  suit  must  be  under  the  seal  of  the 
court  and  signed  by  the  clerk*/  and  it  must  be  served  by  a  mar- 
shal or  his  deputy,  unless  he.  is  interested,  although  the  state  laws 
allow  such  a  service  to  be  made  by  a  state  officer  or  by  a  private 
person.^  The  service  may  be  made  in  the  mode  prescribed  by  the 
law  of  the  state.^  But  the  jurisdiction  of  this  court  cannot  be  ex- 
tended over  persons  who  are  not  rightfully  within  the  reach  of  such 
process  under  the  federal  statutes.* 

If  the  state  law  allows  a  suit,  jointly,  against  parties  severally 
liable  upon  a  bond;^  or  permits  a  joint  action  against  the  makers 
and  endorsers  of  a  note  ;^  or  the  principal  to  sue  on  a  bond  made  to 
an  agent  ;^  or  advantage  to  be  taken  of  the  statutes  of  limitation 
by  demurrer  ;^  or  an  amendment  of  pleading  as  a  matter  of  course 
after  a  demurrer  ;^  the  same  practice  is  proper  in  the  federal  courts. 
In  fact  the  practice  here  must  conform  to  the  state  law  as  inter- 
preted by  the  state  courts,  as  nearly  as  practicable.^** 

If  a  state  law  permits  a  judgment  to  be  entered  on  a  supersedeas 
bond,  after  a  return  of  nulla  bona  on  an^  execution  against  the 
debtor,  a  similar  judgment  may  be  entered  in  the  federal  courts  ;^^ 
and  a  state  law  permitting  a  plaintiff,  on  motion,  to  take  judgment 
against  a  marshal  for  money  collected  and  not  paid  over  will  be 
adopted  in  the  federal  courts,  although  they  cannot  enforce  a  pen- 
alty in  this  summary  way  against  the  marshal  for  the  neglect. ^^ 

Although  a  state  law  may  provide  for  the  reference  of  causes, 
the  federal  courts  cannot  adopt  this  practice  without  the  consent  of 
both  parties,  as  by  the  federal  statutes  either  party  is  entitled  to  a 
trial  by  jury  in  suits  at  law.^^    But  a  circuit  court  may  grant  a  new 

^Johnson  v.   Ilealy,    9   Ben.    318;  ^  Rosenbach    v.  Drey  fuss,    1    Fed. 

Dwijrhti).  Merritt,  4  Fed.  Rep.  614;  Rep.  391;  West  w.  Smith,  101  U.  S. 

Martin  v.  Criscuola,  10  Blatch.  211.  263. 

■•'  Schwabacker  v.  Reilly,  2  Dill.  127.  ^°  Republic  Ins.  Co.  v.  Williams,  3 

^Perkins  v.  City  of  Watertown,  5  Biss.  370;  Brown  v.  Chesapeake  ani 

Biss.  320.  0.  Canal  Co.,  4  Fed.  Rep.  770 ;  Wil- 

*  Main  v.  Second  Nat.  Bk.,  6  Biss.  cox  v.  Hunt,  13  Pet.  378  ;  Sawin  c. 
24 ;  Toland  v.  Sprague,  12  Pet.  300  ;  Kenny,  93  U.  S.  289 ;  Taylor  v.  Brig- 
Picquet  v.  Swan,  5  Mas.  35.  ham,  3  Woods  377. 

*  United  States  v.  Tracy,  8  Ben.  1.  "  Smith  v.  Gaines,  93  U.  S.  341  ; 

*  Fullerton  v.  Bank,  1  Pet.  604.  Hiriat  v.  Ballou,  9  Pet.  156. 

'  Weed  Sewing  Mach.  Co.  v.  Weeks,  '-  Givin  v.  Breedlove,  2  How.  29. 

3  Dill.  261.  "  Howe  Machine  Co.  v.  Edwards, 

*  Chemung  Canal  Bank  i\  Lowrey,  15  Blatch.  402. 
93  U.  S.  72. 


180  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

trial  after  a  report  by  a  referee,  when  a  case  has  been  properly 
referred  to  him,  if  such  is  the  proper  practice  in  the  state  court.  ^ 
The  practice  of  taking  depositions,  and  to  compel  the  production 
of  books  and  writings  in  the  possession  of  an  adverse  party,  is  pro- 
vided for  by  the  federal  statutes,  and  therefore  is  not  governed  by 
the  state  laws.^  Nor  can  a  party  to  an  action  at  law  be  examined 
before  the  trial  at  the  instance  of  the  adverse  party,  except  in  cases 
where  it  is  specially  authorized  under  the  federal  statutes.^ 

If  a  state  law  allows  a  defendant  to  appear  specially  and  move 
to  quash  an  attachment  for  want  of  jurisdiction,  or  a  judgment  by 
default  to  be  set  aside,  or  requires  notice  to  be  given  of  a  hearing  of 
a  demurrer,  the  practice  of  the  state  courts  must  be  pursued.*  But 
statutes  of  a  state  relating  merely  to  the  mode  of  submitting  a  case 
to  a  jury,  or  requiring  a  judge  to  instruct  the  jury  specially  upon 
particular  questions  of  fact  involved  in  the  issues  in  addition  to 
their  general  verdict,  or  requiring  the  judge  to  reduce  his  instruc- 
tions to  writing,  or  that  permit  the  jury  to  take  the  instructions 
and  books  and  papers,  which  have  been  used  in  evidence,  with 
them  when  they  retire  to  agree  on  their  verdict,  or  that  allow  a 
second  trial,  or  motions  for  a  new  trial,  are  not  binding  upon  the 
federal  courts  and  have  no  application  to  federal  practice.^ 

§  207.  Intervention,  reference,  bail,  imprisonment. — If  a  state 
law  allows  a  party  to  intervene  for  the  purpose  of  claiming  prop- 
erty, or  for  any  other  purpose,  the  same  practice  may  be  pursued 
in  the  federal  courts.^  If,  with  the  consent  of  both  parties,  a  cause 
is  referred  to  a  referee,  a  judgment  may  be  entered  upon  his 
report,  if  that  would  be  in  accordance  with  the  state  law ;  and  if 
a  new  trial  may  be  granted  by  the  law  of  the  state  it  may  be 
granted  by  the  federal  courts ;  but  a  cause  cannot  be  referred  with- 
out the  consent  of  both  parties  where  they  have  a  right  to  a  trial 
by  jury .7 

*  Kobinson  v.  Insurance  Co.,  16  ^  Indianapolis,  etc.,  R.  Co.  w.  Horst, 
Blatch.  194.  93  U.  S.  291  ;  Hankin  v.  Squires,  5 

^  Sage  V.  Tauszky,  6  Cent.  L.  J.  7  ;  Biss.  186  ;    Nudd  v.  Burrows,  91  U. 

United  States  v.  Pings,  4  Fed.  Rep,  S.  426  ;  Newcomb  v.  Wood,  97  U.  S, 

714  ;  Easton  v.  Hodges,  7  Biss.  324.  581. 

•^  Easton   v.  Hodges,  7    Biss.  324 ;  '  Featherman    v.    Louisiana    State 

Beardsley  v.  Little,  14  Blatch.  102 ;  Sem.,  2  Woods  71 ;  Bank  v.  Labilut, 

Corbett  v.  Gibson,  16  Blatch.  336.  1  Woods  11. 

*  Rosenbach  v.  Dreyfuss,  2  Fed.  ''  Howe  Machine  Co.  v.  Edwards, 
Rep.  23  ;  Republic  Ins.  Co.  v.  Wil-  15  Blatch.  402 ;  Fourth  Nat.  Bank  v. 
liauis,  3  Biss.  370;  Nazro  v.  Cragin,  Nevhardt,  13  Blatch.  393;  Robinson 
3  Dill.  474.  V.  Insurance  Co.,  16  Blatch.  194. 


CIRCUIT   COURTS — SUITS    AT    LAW.  181 

Special  bail,  in  a  cause  in  the  circuit  courts,  may  surrender  the 
debtor  in  pursuance  of  the  state  laws;^  and  a  debtor  imprisoned 
under  an  execution  from  a  federal  court  is  entitled  to  the  privileges 
of  the  jail  limits  as  fixed  by  the  law  of  the  state.^ 

§  208.  Attachments  in  common  law  causes. — In  common  law 
causes,  in  the  circuit  and  district  courts,  the  plaintiff  is  entitled  to 
similar  remedies  by  attachment  and  other  process,  against  the  prop- 
erty of  the  defendant,  to  those  which  are  provided  by  the  laws  of 
the  state  in  which  such  court  is  held  for  the  courts  thereof;  and 
such  circuit  and  district  courts  may  from  time  to  time,  by  general 
rules,  adopt  such  state  laws  as  may  be  in  force  in  the  states  where 
they  are  held,  in  relation  to  attachments  and  other  process ;  but 
similar  preliminary  affidavits  or  proofs,  and  similar  security,  as 
required  by  such  state  laws,  must  be  first  furnished  by  the  party 
seeking  such  attachment  or  other  remedy.^ 

Original  process  from  the  circuit  courts  cannot  be  served  on 
parties  beyond  the  limits  of  the  district  where  they  are  issued,  so 
as  to  confer  jurisdiction  on  the  courts ;  and  the  provisions  of  the 
statute  last  cited,  giving  the  remedies  by  attachment  and  other 
process  against  the  property  of  the  defendant  which  are  provided 
by  the  laws  of  the  state,  adopts  the  state  remedy  and  the  form  and 
mode  of  service  of  the  process,  but  it  does  not  enlarge  the  sphere 
of  jurisdiction  of  the  court  by  enabling  the  plaintiff  to  compel  the 
appearance  of  a  defendant  where  he  is  not  amenable  to  the  process 
of  the  court  in  personam.  The  process  of  foreign  attachment 
served  on  the  property  of  a  non-resident  of  the  district  does  not 
confer  jurisdiction  on  the  court,  unless  he  is  found  and  served 
within  the  district  with  process  in  personam.  This  must  be  done 
before  or  at  the  time  of  serving  the  attachment ;  and  it  has  been 
held  that  service  after  the  attachment  was  levied  would  not  give 
the  court  jurisdiction.  But  a  general  and  voluntary  appearance  of 
a  defendant  in  a  suit  where  there  is  service  only  of  the  attachment 
within  the  district  will  give  the  court  jurisdiction.* 

In  case  of  an  attachment,  it  can  only  properly  issue  as  a  part  of 

^  Beers  v.  Hau^hton,  9  Pet.  329.  officer  or  other  person  under  authority 

^United  States  v.  Knight,  14  Pet.  of  any  revenue  laws  is  not  repleviable  : 

301.  Id.,  §  934. 

» Rev.   Stat.   |  915.     For  mode  of  *  Toland  v.  Sprague,  12  Pet.  300 ; 
proceeding  on  attachment  in  special  Picquet  v.  Swan,  5  Mason  35 ;  Chit- 
cases,    see   Rev.  Stat.   §   924,  et  seq.  tenden  v,  Darden,  2  Woods  437. 
Property  taken  or  detained  hy   any 


182  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

and  in  connection  with  process  to  be  served  upon  the  defendant  in 
personam;  and  he  must  be  served  with  the  latter  process,  and  have 
an  opportunity  to  defend  himself,  or  the  federal  court  cannot  have 
jurisdiction  of  the  suit^  An  attachment  cannot  afford  the  means 
of  acquiring  jurisdiction  over  a  person  who  is  not  an  inhabitant 
of  nor  found  within  the  state  where  the  suit  is  brought.  The  court 
m&st  acquire  jurisdiction  over  the  defendant  personally  before  the 
plaintiff  can  have  the  benefit  of  this  auxiliary  remedy  by  attach- 
ment.^ The  attachment  must  be  contemporaneous  with  the  personal 
service  of  original  process  within  the  district,  or  follow  it,  or  the 
federal  court  can  take  no  cognizance  of  the  cause. ^ 

§  209.  Executions  in  common  law  causes. — The  party  recover- 
ing a  judgment  in  any  common  law  cause  in  any  circuit  or  district 
court  is  entitled  to  similar  remedies  upon  the  same,  by  execution  or 
otherwise,  to  reach  the  property  of  the  judgment  debtor,  as  are 
provided  in  like  causes  by  the  laws  of  the  state  as  they  existed 
at  the  time  of  the  adoption  of  the  Revised  Statutes,  or  any  such 
laws  thereafter  enacted  which  may  be  adopted  by  general  rules  of 
the  circuit  or  district  court ;  and  such  courts  have  authority  to 
adopt,  from  time  to  time,  such  state  laws,  by  general  rules.* 

The  rights  conferred  upon  parties  by  virtue  of  the  section  last 
cited  are  subject  to  the  provisions  of  the  statutes  of  the  state  relat- 
ing to  bail,  stays  and  exemptions  of  property  from  execution.^ 

The  forms  of  writs,  executions  and  other  process  of  the  state 
courts  may  undoubtedly  be  followed  in  the  federal  courts  by  the 
clerks  thereof.^  But  writs  of  execution  issued  from  the  federal  courts 
cannot  be  controlled,  in  their  general  effect  and  operation,  by  the  pro- 
visions of  the  state  law.'^  Thus,  if  a  state  law  requires  the  plaintiff  to 
endorse  on  the  execution  that  certain  bank  notes  will  be  received  in 


1  Sadler  v.  Hudson,  2  Curt.  7  ;  Al-  Boyle  v.  Zacherie,  6  Pet.  648  ;    Ross 

len  V.  Blunt,  1  Blatch.  480;  Day  v.  v.  Duval,  13  Pet.  45;  United  States  i\ 

Newark    Man.    Co.,    1    Blatch.    628  ;  Knight,  14  Pet.  301  ;  Ames  v.  Smith, 

Levy   V.   Fitzpatrick,    15    Pet.    171;  16  Pet.  303  ;    Massingill  v.  Downs,  7 

Manro    v.  Almeida,    10    Wh.    473;  How.  760 ;    Wyman  v.   Southard,    10 

Chittenden  v.  Darden,  2  Woods  437.  Wh.  1  ;  Mason  v.  Haile,  12  Wh.  370. 

^  Nazro  v.  Cragin,  3  Dill.  474;  ante,        *  Rev.  Stat.  §  911  ;   United  States  v. 

I  303.  Humphreys,  3  Hughes  201, 

^  Chittenden   v.   Darden.    2  Woods        '  United  States  v.  Halstead,  10  Wh. 

437  ;  Ex  parte  Railroad  Co.,  103  U.  51  ;  Ross  v.  Duval,  13  Pet.  45  ;  Ames 

S.  794.  V.  Smith,  16  Pet.  .303  ;  Howe  v.  Free- 

*  Rev.  Stat.  §  916.  man,  80  xMas.  566. 

s  Beers  v.  Houghton,    9  Pet.  329  : 


CIRCUIT    COURTS — SUITS    AT    LAW.  183 

satisfaction  of  the  same,  sucli  a  provision  is  not  applicable  to  an 
execution  issuing  from  the  federal  courts.^ 

If  a  mandamus  is  the  proper  remedy  in  the  highest  state  court, 
to  compel  the  levy  of  a  tax  for  the  satisfaction  of  a  judgment  against 
a  municipal  corporation,  where  the  judgment  creditor  has  no  other 
means  of  obtaining  satisfaction,  this  remedy  would  be  appropriate 
in  the  federal  courts,  and  a  party  having  such  a  judgment  would  be 
entitled  to  this  remedy  in  any  of  those  courts  held  in  the  state,  and 
an  injunction  issued  by  a  state  court  to  restrain  such  a  levy  would 
be  inoperative  against  such  a  mandamus.^ 

A  judgment  creditor  may  have  the  same  remedy  against  a  muni- 
cipal corporation  as  the  state  law  allows  against  private  individuals 
in  similar  cases,  even  though  the  state  law  does  not  allow  that 
remedy  against  the  corporation.^  So,  if  a  state  law  requires  a 
demand  and  notice  in  case  of  an  attachment  of  mortgaged  property 
by  virtue  of  judgment,  it  does  not  apply  to  an  attachment  issued  on 
a  judgment  in  a  federal  court.* 

If  land  is  liable  to  be  taken  on  execution  under  the  laws  of  the 
state,  it  may  be  taken  on  execution  issued  upon  a  judgment  of  a 
federal  court,  rendered  within  the  state. ^ 

§  210.  Judgment  liens. — The  judgment  of  a  federal  court  is  a 
lien  from  the  fact  that  its  effect  and  the  process  thereon  are  the 
same  as  on  judgments  in  the  state  courts  ;  and  these  liens  extend 
throughout  the  district  in  which  they  are  rendered,  in  all  cases  and 
in  like  circumstances,  as  judgments  of  the  state  courts  are  liens  in 
more  limited  districts  where  they  are  rendered.  In  those  states 
where  the  lien  of  a  judgment  of  the  state  courts  is  limited  to  the 
lands  or  other  property  within  the  county  where  the  judgment  is 
rendered,  a  similar  judgment  in  a  federal  court,  entered  in  such 
state,  would  create  a  similar  lien  upon  the  same  property  within  the 
territorial  limits  of  the  district.® 

1  Wyman  v.  Southard,  10  Wh.  1.  4  Pet.  124  ;  Barth  v.  MeKeever,  4  Biss. 

'^  United  States  v.  Keokuk,   6   Wall.  206  ;    Williams  v.    Benedict,  8   How. 

514;  Riggs  W.Johnson  Co.,   6  Wall.  107;  Ward  v.  Chamberlain,  2  Black 

166;  Wyman  v.  Southard,  10  Wh.  1.  430;  Koning  v.  Bayard,  2  Paine  251  : 

'NewOrleansr.  Morris,  3 Woods  115.  Massingill   v.   Downs,   7   IIow.   760; 

*  Howe  V.  Freeman,  80  Mas.  566.  Lombard  v.  Bayard,  1  Wall.  Jr.  196  ; 
^  United  States  v.  Graves,  2  Bock.  Reed  v.  House,  2  Humph.  576.    Judg- 

379  ;  Bank  v.  Halstead,  10  Wh.  51  ;  ment  and  decrees    of  federal  courts 

Koning  v.  Bayard,  2  Paine  251.  cease   to   be   liens   within    the   same 

*  United  States  v.  Humphreys,  3  period  of  limitation  as  the  judgments 
Hughes  201  ;  Shrew  v.  Jones,  2  Mc-  and  decrees  of  state  courts :  Rev. 
Lean  78  ;    United  States  v.  Morrison,  Stat.  ^  967. 


CHAPTER   X. 

CIRCriT    COURTS — PRACTICE    AND    PROCEDURE    IN    EQUITY. 

§  211.  Mesne  process  and  proceedings  in  equity. — oection  Jlo 
of  the  Revised  Statutes  provides :  "  The  forms  of  mesne  process 
and  the  forms  and  modes  of  proceeding  in  suits  of  equity  and  of 
admiralty  jurisdiction  in  the  circuit  and  district  courts  shall  be 
according  to  the  principles  and  usages  which  belong  to  courts  of 
equity  and  admiralty,  respectively,  except  when  it  is  otherwise 
provided  by  statute  or  by  rule  of  court  made  in  pursuance  thereof; 
but  the  same  shall  be  subject  to  such  alteration  by  the  Supreme 
Court,  by  rules  prescribed  from  time  to  time,  to  any  circuit  or 
district  court,  not  inconsistent  with  the  laws  of  the  United  States." 

The  Supreme  Court  has  promulgated  at  various  times  rules  of 
practice  and  procedure  -for  the  courts  of  equity  of  the  United 
States,^  and  given  the  circuit  courts  authority  to  make  other  rules 
and  regulations  for  the  practice,  proceeding  and  process,  mesne 
and  final,  in  their  respective  districts,  not  inconsistent  with  federal 
statutes  or  those  prescribed  by  the  Supreme  Court,  and  from  time 
to  time  to  alter  and  amend  the  same.^  These  courts  may,  as 
courts  of  equity,  establish  rules  in  relation  to  time  and  manner  of 
appearing  and  answering,  and  may  mould  them  in  this  respect 
so  as  to  enlarge  the  time  when  it  shall  appear  that  the  admin- 
istration of  justice  requires  it.^  So  they  may  establish  the  practice 
relating  to  the  mode  of  conducting  trials,  the  order  of  introducing 
evidence,  and  the  time  when  it  must  be  introduced,  unless  these 
matters  shall  be  regulated  by  some  fixed  general  rules  by  the 
Supreme  Court  under  some  act  of  Congress,  or  by  some  federal 
statute.* 

§  212.  Equity  and  admiralty  rules  prescribed  by  the  Supreme 
Court. — The  Supreme  Court  has  authority  to  regulate  the  practice 
and  procedure  in  equity  and  admiralty  in  the  several  circuit  and 
district  courts  of  the  United  States;  but  they  should  be  consistent 

^  See  post,  Rules  in  Equity.  ^  Poultney  v.  City  of  Lafayette,  12 

■^  Equity  Rule  89  ;  Bank  of  U.  S.  v.     Pet.  472. 
White,  8  Pet.  262.  *  The  Philadelphia,  etc.,  R.  Co.  v. 

Stimpson,  14  Pet.  448. 


CIRCUIT    COURTS — SUITS    IN    EQUITY.  185 

with  the  principles,  rules  and  usages  which  belong  to  courts  of 
equity  and  admiralty  respectively.  That  court  has,  in  reference 
to  chancery  practice,  provided  that,  in  all  cases  where  the  rules 
prescribed  by  the  Supreme  Court  or  by  the  circuit  court  under 
the  rule  last  cited  do  not  apply,  the  practice  of  the  circuit  court 
shall  be  regulated  by  the  practice  of  the  High  Court  of  Chancery 
in  England,  so  far  as  the  same  may  reasonably  be  applied  consist- 
ently with  the  local  circumstances  and  local  conveniences  of  the 
district  where  the  court  is  held  ;  not  as  positive  rules,  but  as  fur- 
nishing just  analogies  to  regulate  the  practice.^ 

By  this  rule  the  practice  of  the  English  High  Court  of  Chancery 
regulates  the  practice  of  the  circuit  courts  in  the  exercise  of  chan- 
cery jurisdiction,  subject  to  the  limitations  contained  therein.  The 
jurisdiction  and  practice  of  these  courts  in  equity  are  the  same  in 
all  the  states,  and  the  rule  of  decision  is  the  same  in  all  of  them. 
They  cannot  be  regulated  by  the  law  or  practice  of  the  states;  but 
equitable  remedies  must  be  according  to  the  practice  of  courts  of 
equity  in  the  parent  country  as  contradistinguished  from  courts  of 
law,  subject  to  such  changes  as  may  be  made  by  acts  of  Congress, 
or  by  rules  adopted  by  the  courts  of  the  United  States  in  the  exer- 
cise of  the  powers  delegated  to  them  by  such  acts.^ 

§  213.  Power  of  the  Supreme  Court  to  regulate  the  practice  in  the 
circuit  and  district  courts,  in  equity  and  admiralty. — The  power  of 
the  Supreme  Court  to  prescribe  rules  regulating  the  practice  and 
procedure  in  equity  in  the  circuit  and  district  courts  is  expressly 
conferred  by  the  Revised  Statutes,  which  provide  as  follows  ;  "  The 
Supreme  Court  shall  have  power  to  prescribe  from  time  to  time,  in 
any  manner  not  inconsistent  with  any  law  of  the  United  States, 
the  forms  of  writs  and  other  process,  the  modes  of  framing  and 
filing  proceedings  and  pleadings,  of  taking  and  obtaining  evidence, 
of  obtaining  discovery,  of  proceeding  to  obtain  relief,  of  drawing 
up,  entering  and  enrolling  decrees,  and  of  proceeding  before  trus- 
tees appointed  by  the  court,  and  generally  to  regulate  the  whole 
practice  to  be  used  in  suits  in  equity  or  admiralty  by  the  circuit 

^  Equity  Rule  90  ;  Pennsylvania  v.  ^  Boyle   v.    Zacherie,    6  Pet.    648  ; 

Wheelino;,  etc.,  Bridge  Co.,  18  How.  Story   v.    Livingston,    13    Pet.    359; 

421  ;    Robinson  v.   Campbell,  3  Wh.  Rhode  Island  v.   Massachusetts,     12 

212;    Story   v.    Livingston,    13    Pet.  Pet.  657  ;  s.  c,  15  Pet.  233  ;  Smith  y. 

359;  Wyman  v.  Southard,  10  Wh.  1  ;  Burnham,  2  Sum.  612. 
Duncan  v.  Durst,  1   How.  301  ;  Poni- 
eroy  v.  Main,  2  Paine  476. 


186  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

and  district  courts."^  But  the  several  circuit  and  district  courts 
may  from  time  to  time,  and  in  a  manner  not  inconsistent  with  any 
law  of  the  United  States,  or  any  rule  prescribed  by  the  Supreme 
Court  under  the  preceding  paragraph,  make  rules  and  orders 
directing  the  returning  of  writs  and  processes,  the  filing  of  plead- 
ings, the  taking  of  rules,  the  entering  and  making  up  of  judgments 
by  default,  and  other  matters  in  vacation,  and  otherwise  regulate 
their  own  practice  as  may  be  necessary  and  convenient  for  the 
advancement  of  justice  and  the  prevention  of  delays  in  proceed- 
ings.^ 

These  courts  can  adopt  a  practice  not  inconsistent  with  the  rules 
of  practice  prescribed  by  the  Supreme  Court  for  them  ;  and  they 
may  exercise  discretionary  powers  in  those  cases  where  no  provision 
is  made  by  such  rules  or  by  acts  of  Congress.^  It  is  not  necessary 
that  they  should  adopt  written  rules,  but  these  may  be  established 
by  a  uniform  course  of  proceeding  for  a  series  of  years.*  Under 
the  provisions  of  the  Revised  Statutes,  the  circuit  and  district 
courts  may  require  parties  to  print  their  briefs ;  ^  and  may  adopt  a 
rule  for  making  up  the  trial  docket,  and  for  making  the  clerk's 
fee  for  note  of  issue  a  part  of  the  taxable  costs.^  And  these  courts 
may  suspend  their  own  rules,  or  except  a  particul'ar  case  from  their 
operation,  wherever  the  demands  of  justice  require  it.^ 

§  214.  Affirmation  in  lieu  of  oath. — Where  under  the  general 
equity  rules  an  oath  is  or  may  be  required  or  taken  by  a  party, 
if  he  has  conscientious  scruples  against  taking  an  oath  he  may,  in 
lieu  thereof,  make  solemn  affirmation  to  the  truth  of  the  facts  stated 
by  him.^ 

§  215.  The  circuit  courts  as  courts  of  equity  alw^ays  open  ;  Tvhen 
clerk's  office  open  ;  rule  days. — By  virtue  of  the  delegated  authority 
conferred  upon  the  Supreme  Court  of  the  United  States,  it  has 
framed  and  adopted  certain  general  rules  of  practice  for  the  courts 

1  Rev.  Stat.  §  917.  The  rules  pre-  ^  Bank  of  United  States  v.  White,  8 
scribed  by  the  Supreme  Court  have     Pet.  262. 

the  force  and  effect  of  statutory  pro-  *  Duncan  v.   United  States,   7  Pet. 

visions,  if  not  inconsistent  with   the  435:  Koning  ij.  Bayard,  2   Paine  251. 

laws  of  the  United  States  :  The  Illi-  *  Netf  t;.  Pennoyer,  3  Saw.  335. 

nois,   1  Brown  13;  Gaines  v.  Travis,  *  The  Alice  Tainter,  14  Blatch.  225. 

Abb.  Ad.  422  ;  Grav  v.  Chicago,  etc.,  '  United  States  I'.Breitling,  20  How. 

R.  Co.,  1  Wool.  63;  The  St.  Lawrence,  252;    Russell  w.    McLellan,    3  W.   & 

1  Black.  522.          '  M.  157;  Wallace    v.   Clark.  3   W.  & 

2  Rev.  Stat.  §918.  M.  359. 

8  Equity  Rule  91. 


CIRCUIT    COURTS — SUITS    IN    EQUITY.  187 

of  equity  of  the  United  States,  and  the  first  is  that  "the  circuit 
courts,  as  courts  of  equity,  shall  be  deemed  always  open  for  the 
purpose  of  filing  bills,  answers  and  other  pleadings,  for  issuing 
and  returning  mesne  and  final  process  and  commissions,  and  for 
making  and  directing  all  interlocutory  motions,  orders,  rules  and 
other  proceedings,  preparatory  to  hearing  of  all  causes  upon  their 
merits."^ 

The  clerk's  office  shall  be  open,  and  the  clerk  shall  be  in  attend- 
ance therein,  on  the  first  Monday  of  every  month,  for  the  purpose 
of  receiving,  entertaining  and  disposing  of  all  motions,  rules, 
orders  and  other  proceedings  which  are  grantable  of  course  and 
applied  for  or  had  by  parties  or  their  solicitors,  in  all  causes  pend- 
ing in  equity  in  pursuance  of  the  rules  prescribed.^ 

§  216.  Certain  orders  by  a  judge  in  vacation  to  have  the  same 
effect  as  if  made  by  the  circuit  court  in  term  time. — It  is  provided 
by  Equity  Rule  3  that  "  any  judge  of  the  circuit  court,  as  well  in 
vacation  as  in  term  time,  may,  at  chambers  or  on  the  rule  days  of 
the  clerk's  office,  make  and  direct  all  interlocutory  orders,  rules 
and  other  proceedings  preparatory  to  the  hearing  of  all  causes  upon 
their  merits,  in  the  same  manner  and  with  the  same  effect  as  the 
circuit  court  could  make  and  direct  the  same  in  term,  reasonable 
notice  thereof  being  first  given  to  the  adverse  party  or  his  solicitor 
to  appear  and  show  cause  to  the  contrary,  at  the  next  rule  day 
thereafter,  unless  some  other  time  is  assigned  by  the  judge  for  the 
hearing." 

§  217.  Entry  of  orders,  rules  and  motions  by  the  clerk;  rule  days. 
— All  motions,  rules,  orders  and  other  proceedings  made  and  di- 
rected at  chambers  or  on  rule  days  at  the  clerk's  office,  whether 
special  or  of  course,  must  be  entered  by  the  clerk  in  an  order-book, 
to  be  kept  at  the  clerk's  office,  on  the  day  when  they  are  made  and 
directed,  which  book  must  be  open  at  all  hours  to  the  free  inspection 
of  the  parties  in  any  suit  in  equity  and  their  solicitors.  And, 
except  in  cases  where  personal  or  other  notice  is  specially  required 
or  directed,  such  entry  in  the  order-book  shall  be  deemed  sufficient 
notice  to  the  parties  and  their  solicitors,  without  further  service 
thereof,  of  all  orders,  rules,  acts,  notices  and  other  proceedings 
entered  in  such  order-book,  touching  any  and  all  matters  in  the 
suits  to  and  in  which  they  are  parties  and  solicitors.     And  notice 

1  Equity  Rule  1.  ^  Equity  Rule  2. 


188     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

to  the  solicitors  shall  be  deemed  notice  to  the  parties  for  whom 
they  appear  and  whom  they  represent,  in  all  cases  where  personal 
notice  on  the  parties  is  not  otherwise  specially  required.  And 
where  the  solicitors  for  all  the  parties  in  a  suit  reside  in  or  near  the 
same  town  or  city,  the  judges  of  the  circuit  court  may,  by  rule, 
abridge  the  time  for  notice  of  rules,  orders  or  other  proceedings  not 
requiring  personal  service  on  the  parties,  in  their  discretion.^ 

§  218.  Motions  for  process,  etc.,  granted  by  the  clerk  of  course. — 
It  is  also  provided  by  a  general  rule  regulating  the  practice  in 
equity  that  "all  motions  and  applications  in  the  clerk's  office  for 
the  issuing  of  mesne  process  and  final  process  to  enforce  and  exe- 
cute decrees  ;  for  filing  bills,  answers,  pleas,  demurrers  and  other 
pleadings  ;  for  making  amendments  to  bills  and  answers  ;  for  taking 
bills  fro  confesso  ;  for  filing  exceptions,  and  for  other  proceedings 
in  the  clerk's  office  which  do  not  by  the  rules  require  any 
allowance  or  order  of  the  court  or  of  any  judge  thereof,  shall 
be  deemed  motions  and  applications  grantable  of  course  by  the 
clerk  of  the  court.  But  the  same  may  be  suspended  or  altered 
or  rescinded  by  any  judge  of  the  court,  upon  any  special  cause 
shown."  ^ 

For  forms  in  such  cases,  see  post^  No.  31,  et  seq. 

§  219.  Motions  not  grantable  of  course. — Equity  Rule  6  provides 
for  the  practice  in  case  of  motions  not  granted  as  a  matter  of  course. 
It  is  as  follows :  "  All  motions  for  rules  or  orders  and  other  pro- 
ceedings, which  are  not  grantable  of  course  or  without  notice,  shall, 
unless  a  different  time  be  assigned  by  the  judge  of  the  court,  be 
made  on  rule  day  and  entered  in  the  order-book,  and  shall  be  heard 
at  the  rule  day  next  after  that  on  which  the  motion  is  made.  And 
if  the  adverse  party  or  his  solicitor  shall  not  then  appear,  or  shall 
not  show  good  cause  against  the  same,  the  motion  shall  be  heard 
by  any  judge  of  the  court  ex  j^ctrte  and  granted  as  if  not  objected 
to  or  refused,  in  his  discretion." 

A  motion  to  produce  a  paper  in  the  possession  of  the  opposite 
party,  and  which  it  is  desired  to  use  in  evidence,  is  not  a  motion 
grantable  of  course,  or  without  notice  ;  but  if  it  is  desired  to  enable 
the  party  to  plead,  it  may  be  granted  in  the  discretion  of  the  court, 

^  Equity  Rule  4.  pearing  and  answering,  so  as  to  pre- 

^  Equity  Rule  5.     A  federal  court,  vent   them   from  working   injustice: 

in  equity,  may  mould  its  rules  in  re-  Poultney  v.  Lafayette,  12  Pet.  472. 

lation  to  the  time  and  manner  of  ap- 


CIRCUIT    COURTS — SUITS    IN    EQUITY.  189 

without  notice.^  Nor  is  a  motion  for  the  appointment  of  commis- 
sioners to  take  testimony  grantable  of  course.  Special  motions  are 
not  grantable  of  course,  and  generally  require  the  allowance  of  the 
judge,  after  notice  to  the  opposite  party. ^  But  previous  notice  of 
a  motion  for  the  appointment  of  a  receiver  is  not  necessary,  where 
the  counsel  for  the  opposite  party  is  present  in  court  at  the  time.^ 

For  forms  in  equity,  see  post^  No.  25,  et  seq. 

§220.  Subpoena  and  attachment;  proper  mesne  process. — The 
process  of  subpoena  constitutes  the  proper  mesne  process  in  all  suits 
in  equity,  in  the  first  instance,  to  require  the  defendant  to  appear 
and  answer  the  exigency  of  the  bill ;  and  unless  otherwise  provided 
by  the  general  rules  in  equity,  or  specially  ordered  by  the  circuit 
court,  a  writ  of  attachment,  and,  if  the  defendant  cannot  be  found, 
a  writ  of  sequestration  or  a  writ  of  assistance,  to  enforce  the  de- 
livery of  possession,  as  the  case  may  require,  is  the  proper  process 
to  issue  for  the  purpose  of  compelling  obedience  to  any  interlocutory 
or  final  order  or  decree  of  the  court.^ 

Jurisdiction  over  parties  in  the  circuit  or  district  courts  in  equity, 
in  personam,  can  only  be  acquired  by  the  proper  service  of  the  pro- 
cess of  subpoena  within  the  district  where  the  court  is  held,  or  by 
their  voluntary  appearance  in  the  suit.  If  the  necessary  parties 
cannot  be  served  within  the  district,  and  they  do  not  voluntarily 
appear,  the  bill  will  be  dismissed  for  want  of  jurisdiction.^  The 
statute,  as  we  have  seen,  does  not  allow  jurisdiction  of  a  suit  against 
a  non-resident  to  be  acquired  merely  by  attachment  of  property  of 
the  defendant  within  the  state,  so  as  to  authorize  a  personal  judg- 
ment, unless  personal  service  upon  the  defendant  is  made  within 
the  district.  The  auxiliary  remedy  by  attachment  does  not  afford 
the  means  of  acquiring  jurisdiction.^  Proceedings  in  equity  against 
property  of  a  non-resident  defendant  are,  however,  authorized  in  cer- 
tain cases  ;^  but  no  process  of  subpoena  can  issue  from  the  clerk's 
office  in  any  suit  in  equity  until  the  bill  is  filed  in  his  office.^     We 

^  Bronson  v.  Kinzie,  3  McLean  180.  *  Toland  v.  Spraojue,  12  Pet.  300  ; 

-  United  States  v.  Parrott,  1  MeAll.  Picquet  v.  Swan,  5  Mason  3o  ;  Nazro 

447.  V.  Cragin,  3  Dill.  474;  Ex  parte  llail- 

=*  McLean  v.  The  Lafayette  Bank,  3  road  Co.,  103  U.  S.  794  ;  Kev.  Stat,  g 

McLean  503.  739  ;  act  June  4,  1880. 

*  Equity  Rule  7.  ^  Act  March  3,  1875,  c.  137,  g  8. 

^  Herndon  v.  Ridgeway,    17  IIow.  *  Equity  Rule  11. 
424.     See   also  Vattigr   v.    Hiude,   7 
Pet.  252. 


190  FEDERAL    PLEADING,    PKACTICE    AND    PROCEDURE. 

■will  hereafter  consider  the  proper  form  and  frame  of  bills  in  equity, 
and  what  they  must  contain  and  what  may  be  omitted  in  them. 

For  form  of  subpoena,  see  fost,  No.  32, 

§  221.  Original  process  of  subpcEiia,  vrhen  returnable. — Whenever 
a  bill  is  filed,  it  is  the  duty  of  the  clerk  to  issue  the  process  of  sub- 
poena thereon,  as  of  course,  upon  the  application  of  the  plaintiff, 
which  must  be  returnable  into  the  office  of  the  clerk  the  next  rule 
day,  or  the  next  rule  day  but  one,  at  the  election  of  the  plaintiff, 
occurring  after  twenty  days  from  the  time  of  the  issuing  thereof. 
At  the  bottom  of  the  subpoena  must  be  placed  a  memorandum  that 
the  defendant  is  to  enter  his  appearance  in  the  suit  in  the  clerk's 
office  on  or  before  the  day  at  which  the  writ  is  returnable,  or  the 
bill  may  be  taken  as  confessed.  If  there  is  more  than  one  defend- 
ant, a  writ  of  subpoena  may,  at  the  election  of  the  plaintiff,  be  sued 
out  separately  for  each  defendant,  except  in  case  of  husband  and 
wife  defendants,  or  a  joint  subpoena  may  be  sued  out  against  all 
the  defendants.^ 

§  222.  Mode  of  serving  process  of  subpoena ;  alias  subpoenas ; 
who  may  serve, — The  service  of  a  subpoena  must  be  by  a  delivery 
of  a  copy  thereof  by  the  officer  serving  the  same  to  the  defendant 
personally,  or  by  leaving  a  copy  thereof  at  the  dwelling-house  or 
usual  place  of  abode  of  each  defendant,  with  some  adult  person 
who  is  a  member  of  or  resident  in  the  family.^  If  any  subpoena 
is  returned  not  executed  as  to  any  defendant,  the  plaintiff  is  en- 
titled to  another  subpoena,  toties  quoties,  against  such  defendant,  if 
he  requires  it,  until  due  service  is  made.^  The  service  of  all  pro- 
cess, mesne  and  final,  shall  be  by  the  marshal  of  the  district  or  his 
deputy,  or  by  some  person  specially  appointed  by  the  court  for  that 
purpose,  and  not  otherwise.  In  the  latter  case  the  person  making 
the  service  must  make  affidavit  of  the  same.*  In  the  case  of  service 
by  the  marshal  or  his  deputy,  a  certificate  of  the  fact  would  be  suf- 
ficient evidence  of  the  same. 

For  form  in  such  cases,  see  post,  No.  32. 

It  is  the  duty  of  a  marshal  to  serve  process  as  soon  as  he  reason- 
ably can,  and  he  is  liable  on  his  bond  for  any  loss  occurring  through 
the  negligence  or  unreasonable  delay  of  himself  or  his  deputy  in 
serving  the  same.     The  measure  of  his  liability  is  the  extent  of  the 

1  Equity  Rule  12.  '' Equity  Rule  14. 

*  Equity  Rule  13.  *  Equity  Rule  15. 


CinCUIT    COURTS — SUITS    IN    EQUITY.  191 

injui'j  caused  by  the  negligence  or  delay.  If  the  loss  of  a  debt  is 
the  direct  legal  consequence  of  the  failure  to  serve  or  of  negligent 
delay,  the  amount  of  the  debt  is  the  measure  of  damages ;  but  the 
mere  failure  to  serve  a  subpoena  does  not  necessarily  infer  the  loss 
of  the  debt,  because  the  plaintiff  may  sue  out  another  one.  The 
question  whether  the  loss  of  a  debt  resulted  from  the  delay  or 
failure  of  the  marshal  or  his  deputy  to  serve  the  process  is  a  ques- 
tion of  fact  depending  upon  the  circumstances,  of  which  a  jury  must 
judge.^  If  the  deputy  fails  to  obey  the  commands  of  the  writ  with- 
out legal  excuse,  or  if  in  the  execution  thereof  he  violates  the  rights 
of  others,  the  marshal  is  liable  to  the  party  injured.^ 

§  223.  Docketing  cause  ;  appearance  day  ;  entry  of  appearance. 
— It  is  the  duty  of  the  clerk,  upon  the  return  of  a  subpoena  served 
and  executed  upon  any  defendant,  to  enter  the  suit  upon  his  docket 
as  pending  in  the  court,  and  to  state  the  time  of  the  entry.  The 
defendant  must  appear  on  the  rule  day  to  which  the  subpoena  is 
made  returnable,  provided  he  has  been  served  with  the  process 
twenty  days  before  that  day ;  otherwise  his  proper  appearance  day 
will  be  the  next  rule  day  succeeding.  And.  the  appearance  of  the 
defendant,  either  personally  or  by  his  solicitor,  should  be  entered 
by  the  clerk  in  the  order  book  on  the  day  thereof.^ 

But  no  civil  action  can  be  brought  before  either  the  district  or 
circuit  court,  by  any  original  process  or  proceeding,  in  any  other 
district  than  that  whereof  the  defendant  is  an  inhabitant  or  in 
which  he  shall  be  found  at  the  time  of  service  of  such  process  or 
commencing  such  proceedings,  except  in  some  special  cases,  which 
we  have  noticed.*  The  defendant,  however,  by  an  appearance  in 
the  case  without  objection  to  the  service,  will  thereby  waive  the 
omission  or  defect  of  service,  and  give  the  court  jurisdiction  of 
the  person.  Thus,  if  the  defendant  in  a  suit  in  equity  appears  and 
answers  the  bill,  he  cannot,  on  the  hearing,  object  that  the  bill  con- 
tains no  prayer  for  process,  or  that  he  was  not  served  with  process. 
And  a  general  appearance,  personally  or  by  counsel,  cures  all  ante- 
cedent defects  or  irregularities  of  process.^ 

^  The    United    States    r.     Moore's  *  Act  of  1875.  ||  1,  8. 

Adm"s,    2   Brock.   317;    Kennedy   v.  ^  Knox    v.    Summers,    3    Cr.    496; 

Brent,  6  Cr.  187.  Gracie  c.  Palmer,  8  Wh.   699  ;    Car- 

^  Insurance  Co.  v.  Adams,  9  Pet.  rinj^ton   v.   Bents,     1    McLean    167  ; 

573.  Segee  v.  Thomas,  3  Blatch.  11  ;  Good- 

^  Equity  Rules  16,  17.  year  v.  Bowen,  3  Blatch.  266. 


192  FEDERAL    PLEADING,    PRACTICE    AMD    PROCEDURE. 

The  special  appearance  of  a  defendant  for  tlie  purpose  of  making 
objection  of  the  want  of  proper  service  might  not  have  this  effect; 
but  if  he  appears  in  person  or  by  counsel  and  moves  to  dismiss  the 
bill  for  want  of  jurisdiction  and  also  for  want  of  equity,  it  is  a 
waiver  of  want  of  jurisdiction  of  the  person,  on  account  of  the  defend- 
ant's non-residence  in  the  district  and  want  of  service  therein.^  But 
this  doctrine  does  not  apply  in  case  of  infant  defendants,  whose 
appearance,  personally  or  otherwise,  would  not  be  a  waiver  of  want 
of  proper  service  of  process.^ 

§  224.  Bills  taken  pro  confesso ;  •when  defaults  may  be  entered. — 
The  defendant  is  required  to  file  his  plea,  demurrer  or  answer  to 
the  bill  in  the  office  of  the  clerk,  on  the  rule  day  next  succeeding 
that  of  entering  his  appearance,  unless  the  time  is  otherwise  enlarged 
by  the  judge  of  the  court  for  cause  shown  upon  motion  for  that 
purpose.  In  default  thereof,  the  plaintiff  may,  at  his  election,  enter 
an  order,  as  of  course,  in  the  order  book,  that  the  bill  be  taken  pro 
confesso;  and  thereupon  the  cause  must  be  proceeded  with  ex  parte, 
and  the  matter  of  the  bill  may  be  decreed  by  the  court  at  the  next 
ensuing  term  thereof  accordingly,  if  the  same  can  be  done  without 
an  answer,  and  is  proper  to  be  decreed ;  or  the  plaintiff,  if  he 
requires  any  discovery  or  answer  to  enable  him  to  obtain  a  proper 
decree,  is  entitled  to  process  of  attachment  against  the  defendant  to 
compel  an  answer,  and  the  defendant  cannot,  when  arrested  upon 
such  process,  be  discharged  therefrom  unless  upon  filing  his  answer, 
or  otherwise  complying  with  such  order  as  the  court  or  a  judge 
thereof  may  direct  as  to  pleading  to  or  fully  answering  the  bill 
within  a  period  to  be  fixed  by  the  court  or  judge,  and  undertaking 
to  speed  the  cause.^ 

§  225.  Decree  on  default. — When  a  bill  is  taken  pro  confesso,  the 
court  may  proceed  to  a  decree  at  the  next  ensuing  term,  and  such 
decree  rendered  must  be  deemed  absolute,  unless  the  court  shall  at 
the  same  term  set  aside  the  same,  or  enlarge  the  time  for  filing  the 
answer,  for  cause  shown,  upon  motion  and  affidavit  of  the  defendant. 
But  no  such  motion  can  be  granted  except  upon  payment  of  costs 
of  the  plaintiff  in  the  suit  up  to  that  time,  or  such  part  thereof  as 
the  court  may  deem  reasonable;  and  unless  the  defendant  shall 

^  Jones  V.  Andrews,  10  Wall.  327.       pearance,  see  post,  Form  No.  33;  form 
^  Lessee  of  Nelson  v.  Moon,  3  Mc-     of  order,  see  post,  Form  No.  34. 
Lean  319.     For  form  of  entry  of  ap-        '  Equity   Kule    18  ;     Pendleton   v. 

Evans,  4  Wash.  336. 


CIRCUIT    COURTS — SUITS    IN    EQUITY.  193 

undertake  to  file  his  answer  within  such  time  as  the  court  may  direct, 
and  submit  to  such  other  terms  as  the  court  shall  direct  for  the  pur- 
pose of  speeding  the  cause.^ 

The  court  cannot  render  a  final  decree  for  want  of  appearance  at 
the  first  term  after  the  service  of  a  subpoena,  unless  another  rule  day 
has  intervened  ;  and  if  a  decree  pro  confesso  is  irregularly  entered 
it  will  be  set  aside  on  motion  as  a  matter  of  course.^ 

§  226.  Frame  of  bills;  introductory  part. — The  rules  framed  and 
promulgated  by  the  Supreme  Court  for  pleading,  practice  and  pro- 
cedure in  the  federal  courts  in  equity  prescribe  to  some  extent 
the  form  and  frame  of  bills  and  other  pleadings,  what  they  must 
contain,  and  what  may  be  omitted  in  the  frame  of  pleadings  from 
the  forms  of  pleadings  in  use  in  the  High  Court  of  Chancery  in 
England. 

Every  bill  in  the  introductory  part  thereof  must  contain  the 
names,  places  of  abode  and  citizenship  of  all  the  parties,  plaintiffs 
and  defendants,  by  and  against  whom  the  suit  is  brought.  This 
may  be  in  the  following  form  : 

"To  the  judges  of  the  circuit  court  of  the  United  States  for  the 
district  of  :  A.  B.,  of  ,  and  a  citizen  of  the  state  of 

,  brings  this  his  bill  against  C.  D.,  of  ,  and  a  citizen 

of  the  state  of  ,   and  E.  F.,  of  ,   and  a  citizen  of  the 

state  of  .     And  thereupon   your   orator   complaining  says 

that,"  etc.^ 

It  is,  however,  quite  common  and  convenient  to  preface  this  intro- 
duction to  the  bill  with  the  following  caption :  "  Circuit  court  of 
the  United  States  for  the  district  of  ,  in  the  cir- 

cuit." 

§  227.  What  may  be  omitted  from  the  bill. — It  is  provided  by 
rule  that  the  plaintiff  shall  be  at  liberty  to  omit  the  part  which  is 
usually  called  the  common  confederacy  clause  of  the  bill,  averring 
a  confederacy  between  the  defendants  to  injure  or  defraud  the 
plaintiffs ;  also  what  is  commonly  called  the  charging  part  of  the 
bill,  that  is,  the  part  usually  setting  forth  the  matters  or  excuses 
which  the  defendant  will,  it  is  supposed,  set  up  by  way  of 
defence  to  the  bill ;  also  what  is  commonly  called  the  jurisdiction 

1  Equity  Rule  19.  150;    Fellows    v.    Hall    &    Allen,   3 

2  O'llara  v.   MacConnell,  93  U.  S.     McLean  281. 

•'  Equity  Rule  20. 
13 


194  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

clause  of  the  bill,  that  is,  that  part  that  sets  forth  that  the  acts  com- 
plained of  are  contrary  to  equity,  and  that  the  defendant  is  without 
any  remedy  at  law. 

If  these  common  averments  of  a  bill  in  chancery  are  omitted,  the 
bill  will  not  be  demurrable  therefor.  The  complainant  may  also,  in 
the  narrative  part  of  his  bill,  state  and  avoid  by  counter  averments, 
at  his  option,  any  matter  or  thing  which  he  supposes  will  be  insisted 
upon  by  the  defendants  by  way  of  defence  to  the  case  made  by  the 
plaintiif  for  relief.^ 

§  228.  The  prayer  for  relief  of  the  bill. — The  prayer  of  the  bill 
must  ask  for  the  special  relief  to  which  the  plaintiff  supposes  him- 
self entitled,  and  must  also  contain  a  prayer  for  general  relief;  and 
if  an  injunction  or  writ  of  ne  exeat  regno,  or  any  other  special 
order  pending  the  suit,  is  required,  it  must  be  specifically  asked  for.^ 

The  complainant's  bill  should  give  a  general  statement  of  the  facts 
of  the  case,  and  it  should  contain  sufiicient  matters  of  fact  to  main- 
tain his  case.  The  proofs  must  sustain  the  allegations  ;  and  a  party 
will  not  be  allowed  to  state  one  case  in  his  bill  or  answer  and  make 
out  a  different  one  by  his  proof.  The  allegata  and  probata,  must 
agree.^ 

Under  the  general  prayer  for  relief,  other  relief  may  be  granted 
than  that  which  is  particularly  prayed  for ;  but  it  must  be  consist- 
ent with  the  case  made  by  the  bill.* 

A  bill  in  equity  praying  for  a  discovery  and  an  account  of  profits 
on  account  of  an  infringement  of  a  patent  is  not  demurrable  on  the 
ground  that  the  complainant  has  an  adequate  remedy  at  law.* 

For  various  forms  of  bills,  see  post,  No.  25,  et  seq. 

§  229,  Parties  beyond  the  jurisdiction  of  the  court. — If  other  par- 
ties than  those  named  as  defendants  in  the  bill  appear  to  be  neces- 
sary or  proper  parties  thereto,  the  bill  should  aver  the  reason  why 
they  are  not  made  parties,  by  showing  them  to  be  without  the  juris- 
diction of  the  court,  or  that  they  cannot  be  joined  without  ousting 
the  jurisdiction  of  the  court  as  to  other  parties.  As  to  persons  who 
are  without  the  jurisdiction  of  the  court,  and  may  be  properly  made 

1  Equity  Rule  21.  Walden  v.  Bodley,  14  Pet.  156 ;  Hob- 

^  Equity  Kule  21.  son  v.  McArthur,  16  Pet.  182;  Taylor 

*  Harrison  v.  Xixon,  9  Pet.  483  :  v.  Merchants'  Fire  Ins.  Co.,  9  How. 
Boon  V.  Chiles,  10  Pet.  177  ;  Denham  390  ;  Wilson  v.  Graham,  4  Wash.  53. 
v.  Railway  Co.,  1  Bond.  (C.  C.)  442.  =  Perry  v.  Corninjr,  7  Blatch.  195. 

*  English    V.   Foxall,   2  Pet   595 ; 


CIRCUIT    COURTS — SUITS    IN    EQUITY.  195 

parties,  the  bill  may  pray  that  process  may  issue  to  make  them  par- 
ties to  the  bill  if  they  should  come  within  the  jurisdiction  of  the 
court.' 

§  230.  "What  the  prayer  for  process  of  subpcjena  must  contain. — 
The  prayer  for  process  of  subpoena  must  contain  the  names  of  all 
the  defendants  named  in  the  introductory  part  of  the  bill.  If  any 
of  them  are  infants  under  age,  or  otherwise  under  guardianship, 
it  should  state  the  fact,  so  that  the  court  may  take  order  thereon 
as  justice  may  require,  upon  the  return  of  the  process.  If  an 
injunction  or  writ  of  ne  exeat  regno,  or  any  other  special  order 
pending  the  suit,  is  asked  for  in  the  prayer  for  relief,  it  is  sufficient 
without  repeating  the  same  in  the  prayer  for  process.^ 

§  231.  Signature  of  counsel. — Bills  in  chancery  should  have  the 
signature  of  counsel  annexed  to  them  ;  and  this  is  considered  as  an 
affirmation  on  his  part  that,  upon  the  instructions  given  to  him  and 
the  case  laid  before  him,  there  is  good  ground  for  the  bill  in  the 
manner  in  which  it  is  framed.^  If  the  bill  is  not  signed  by  counsel, 
it  is  demurrable;  but  signing  on  the  back  of  it  is  sufficient,  and  if 
it  is  demurred  to  for  this  defect,  it  may  be  amended  so  as  to  obviate 
the  objection  made  by  the  demurrer.* 

§  232.  Scandal  and  impertinence  in  bills. — It  is  required  that 
every  bill  should  be  expressed  in  as  succinct  terms  as  it  reason- 
ably can  be,  and  that  it  contain  no  unnecessary  recitals  of  deeds, 
documents,  contracts  or  other  instruments  in  Jiec  verba,  or  any 
other  impertinent  matter,  or  any  scandalous  matter  not  relevant 
to  the  suit.  If  it  does,  it  may,  on  exceptions  thereto  for  this 
cause,  be  referred  to  a  master  by  any  judge  of  the  court ;  and  if 
so  found  by  him  to  be  scandalous  or  impertinent,  the  scandalous  or 
impertinent  matter  may  be  expunged  at  the  expense  of  the  plain- 
tiff, and  he  will  be  required  to  pay  the  defendant  all  his  costs  in  the 
suit  up  to  that  time,  unless  the  court  or  a  judge  thereof  shall  other- 
wise order.  But  if  the  master  reports  that  the  bill  is  not  scandalous 
or  impertinent,  the  plaintiff  is  entitled  to  all  costs  occasioned  by  the 
reference.^ 

^  Equity  Rule  22.  allowed,  an   amendment  may  be  al- 

2  Equity  Rule  23.  lowed  in  the  discretion  of  the  court, 

Equity  Rule  24.  on    such    terms   as   may   be  deemed 

*  Dwight  V.  Humphrey,  3  McLean  reasonable :  Equity  Rule  35. 

104;  Roach  v.  Hulings,  5  Cr.  (C.  C.)  ^  Equity  Rule  26. 

G37.     If  a  demurrer  to  a  bill  shall  be 


196  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

No  general  rule  can  be  laid  down  as  to  what  constitutes  multi- 
fariousness, scandal  or  impertinence.  Each  case  must  be  governed 
bj  the  circumstances,  in  regard  to  which  the  court  or  examiner 
should  exercise  a  sound  discretion.* 

§  233.  No  order  of  reference  to  a  master,  for  scandal  or  imperti- 
nence, unless  exceptions  are  taken  in  vrriting. — No  order  can  be 
made  by  any  judge  for  referring  any  bill,  answer  or  pleading,  or 
other  matter  or  proceeding  depending  before  the  court,  for  scandal 
or  impertinence,  unless  exceptions  are  taken  thereto  in  writing  and 
signed  by  counsel,  describing  the  particular  passages  that  are  con- 
sidered to  be  scandalous  or  impertinent.  Such  exceptions  must  be 
filed  on  or  before  the  next  rule  day  after  the  process  on  the  bill 
shall  be  returnable,  or  after  the  answer  or  pleading  is  filed.  And 
such  order,  when  obtained,  shall  be  considered  as  abandoned  unless 
the  party  obtaining  it  shall,  without  any  unnecessary  delay,  pro- 
cure the  master  to  examine  and  report  the  same  on  or  before  the 
next  succeeding  rule  day,  or  the  master  shall  certify  that  further 
time  is  necessary  for  him  to  complete  the  examination.^ 

§  234.  Amendment  of  bills,  when  of  course. — The  plaintiff  is  at 
liberty,  as  a  matter  of  course  and  without  payment  of  costs,  to 
amend  his  bill  in  any  respect,  before  any  copy  has  been  taken  out  of 
the  clerk's  oflBce,  and  in  any  small  matters  afterwards,  such  as  fill- 
ing blanks,  correcting  errors  of  dates,  misnomer  of  parties,  misde- 
scription of  premises,  clerical  errors,  and  generally  in  matters  of 
form.  But  if  he  amend  in  a  material  point,  which  he  may  do  of 
course,  even  after  a  copy  has  been  taken  out  of  the  clerk's  office, 
but  before  any  answer  or  plea  or  demurrer  to  the  bill,  he  must 
pay  to  the  defendant  the  costs  occasioned  thereby,  and  must  with- 
out delay  furnish  him  a  fair  copy  thereof,  free  of  expense,  with  suit- 
able references  to  the  places  where  the  amendments  are  to  be  inserted. 
And  if  the  amendments  are  numerous  he  must  furnish  in  like  man- 
ner to  the  defendant  a  copy  of  the  whole  bill  as  amended ;  and  if 
there  be  more  than  one  defendant,  a  copy  must  be  furnished  to  each 
defendant  affected  thereby.^ 

Under  the  privilege  of  amending  a  party  is  not  at  liberty  to 
abandon  the  entire  case  made  by  the  bill  and  make  a  new  and  dif- 

»  Gaines    v.   Chew,   2    How.    619  :  ■^  Equity  Rule  27.     Oliver  v.  Piatt, 

Oliver  v.  Piatt,  3  How.  333  ;  McLean  3  How,  333  :  Nelson  v.  Hill,  5  How. 

r.    Lafayette   Bank,  3  McLean  415;  127. 

Nourse  v.  Allen,  4  Blatch.  376.  "  Equity  Rule  28. 


CIRCUIT    COURTS — SUITS    IN    EQUITY.  197 

ferent  case.  Amendments  are  properly  allowable  when  the  bill  is 
found  defective  in  proper  parties  to  it,  in  its  prayer  for  relief,  or  in 
the  omission  or  mistake  of  some  fact  or  circumstance  connected 
■with  the  substance  of  the  case ;  but  not  for  putting  in  issue  new 
matter  to  meet  allegations  of  the  answer.  Amendments  which 
chancre  the  character  of  the  bill  or  answer  so  as  to  make  substan- 
tially  a  new  case  should  rarely  if  ever  be  admitted,  especially  after 
a  cause  has  been  set  for  a  hearing.^  If  an  amendment  is  made  of 
course  or  on  leave,  as  we  shall  hereafter  notice,  it  should  be  by  a 
separate  bill,  and  not  by  interlineation  of  the  original  bill.^  An 
amendment  of  the.  bill  may  be  made  by  leave  of  the  circuit  court, 
after  the  removal  of  a  cause  from  a  state  court,  by  inserting  new 
counts  for  the  same  cause  of  action  as  that  alleged  in  the  original 
bill.^ 

§  235.  Amendment  of  bill  may  be  made  after  answer,  plea  or 
demurrer. — The  plaintiff  may,  even  after  an  answer,  plea  or  de- 
murrer to  his  bill,  but  before  replication,  obtain  an  order  from  any 
judge  of  the  court  to  amend  his  bill,  upon  motion  or  petition  with- 
out notice  on  or  before  the  next  succeeding  rule  day,  upon  payment 
of  costs  or  without  payment  of  costs,  as  the  court  or  a  judge  thereof 
in  his  discretion  may  direct.  If,  however,  a  replication  has  been 
filed,  the  plaintiff  will  not  be  permitted  to  withdraw  it  and  amend 
his  bill,  except  upon  a  special  order  of  a  judge  of  the  court,  upon 
motion  or  petition  after  due  notice  to  the  other  party,  and  upon 
proof  by  affidavit  that  the  same  is  not  made  for  the  purpose  of 
vexation  or  delay,  or  that  the  matter  of  the  proposed  amendment  is 
material,  and  could  not  with  reasonable  diligence  have  been  sooner 
introduced  into  the  bill,  and  upon  the  plaintiff's  submitting  to  such 
other  terms  as  may  be  imposed  by  the  judge  for  speeding  the 
cause.* 

Under  the  provisions  of  the  rule  last  cited,  a  bill  may  be  amended 
after  a  hearing  and  case  for  relief  made  out,  but  not  the  case  made 
by  the  bill.  Thus,  where  the  original  bill  was  for  a  specific  perform- 
ance, but  did  not  state  the  facts  and  circumstances  on  which  the 
relief  was  based  with  sufficient  fullness,  and  the  amended  bill  em- 
braced the  subject-matter  and  general  purpose  of  the  original  one, 

1  Shields  v.  Barrow,  17  How.  130;         ^  Pierce  &  McDonald  v.  West,  Ex'r, 
Walden     v.    Bodley,    14    Pet.    156  -,     3  Wash.  354. 
Holmes  v.  Trout,  1  xMcLean  1.  =•  West  v.  Smith,  101  U.  S.  263. 

*  Equity  Rule  29. 


198  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

and  stated  the  contract,  consideration,  promise  and  acts  of  part 
performance  with  sufficient  accuracy  and  precision,  and  the  proof 
taken  under  the  original  bill  entitled  the  complainants  to  the  relief 
sought,  it  was  held  that  the  amendment  after  the  hearing  should  be 
allowed.^  But  an  amendment  will  not  be  allowed  after  replication, 
where  the  purpose  of  it  is  to  bring  in  a  new  party  who  was  known 
to  the  original  plaintiif  or  his  agent  at  the  time  the  bill  was  filed. ^ 
Although  the  ruling  on  a  demurrer  to  a  bill  may  be  erroneous,  yet 
if  the  plaintiff  amends  his  bill  in  conformity  with  the  ruling,  and 
the  defendant  answers  the  bill  as  amended,  neither  party  can  take 
advantage  of  the  erroneous  rulins;.^ 

§  236.  When  amendments  must  be  filed  after  order  of  allo'wance. — 
If  the  plaintiff  obtains  an  order  to  amend,  as  provided  by  the  rule 
last  cited,  he  should  file  his  amendments  or  amended  bill,  as  the 
case  may  require,  in  the  office  of  the  clerk,  on  or  before  the  suc- 
ceeding rule  day.  If  he  fails  to  do  so  he  must  be  considered  to 
have  abandoned  the  same,  and  the  cause  will  proceed  as  if  no  appli- 
cation for  an  amendment  had  been  made.* 

For  form,  see  post,  Form  No.  41. 

§  237.  Demurrers  and  pleas;  allowance  of. — No  demurrer  or  plea 
is  allowed  to  be  filed  to  any  bill  unless  upon  a  certificate  of  counsel 
that  in  his  opinion  it  is  well  founded  in  point  of  law,  and  supported 
by  the  affidavit  of  the  defendant  that  it  is  not  interposed  for  delay ; 
and  if  it  be  a  plea,  that  it  is  true  in  point  of  fact.^ 

If  the  demurrer  or  plea  is  not  accompanied  by  the  proper  cer- 
tificate of  counsel  and  the  required  affidavit  of  the  defendant,  the 
proper  practice  would  be  to  move  to  strike  it  from  the  files.  If  the 
plaintiff  should  file  a  demurrer  to  a  plea,  and  the  cause  is  regularly 
brought  to  argument  on  the  question  of  the  sufficiency  of  it,  the 
want  of  the  certificate  and  affidavit  will  be  regarded  as  waived.^ 

For  form  of  demurrer,  see  2^ost,  Nos.  42,  43,  44. 

§  238.  Demurrer ;  plea ;  answer. — The  defendant  may  at  any  time 
before  the  bill  is  taken  for  confessed,  or  afterwards  with  leave  of  the 

1  Neale  v.  Neale,  9  Wall.  1.  Blatch.  130.     If  a  plea  is  filed  irreg- 

^  Ross  i;.  Carpenter,  6  McLean  382;  ularly,  the  complainant  cannot  treat 

Goodyear  v.  Bourn,  3  Blatch.  266.  it  as  a  nullity  and  take  a  decree  pro 

^  Marshall  v.  Vicksburg,  15  Wall,  confesso.     He   should,  before  taking 

146.  such  a  decree,  obtain  an  order  setting 

*  Equity  Rule  30.  the  plea  aside  or  striking  it  from  the 
^  Equity  Rule  31.  files:    Ewiug  v.  Blight,  3    Wall.  Jr. 

*  Goodyear's    Adm'rs    v.    Toby,   6  134. 


CIRCUIT    COURTS — SUITS    IN    EQUITY.  199 

court,  demur  or  plead  to  the  whole  bill,  or  to  a  part  of  it,  and 
he  may  demur  to  part  and  plead  to  part  of  it,  and  answer  to  the 
residue.  But  if  a  bill  specially  charges  fraud  or  combination,  a 
plea  to  such  part  must  be  accompanied  with  an  answer  fortifying 
the  plea  and  explicitly  denying  fraud  and  combination,  and  the 
facts  on  which  the  charge  is  founded.^ 

A  defendant  may  meet  a  plaintiff's  bill  by  several  modes  of  de- 
fence. He  may  demur,  plead  or  answer  to  the  whole  or  to  different 
parts  of  the  bill.  But  a  demurrer  to  the  whole  bill  will  not  be 
sustained  if  any  part  of  the  bill  is  good  and  entitles  the  plaintiff  to 
relief.^ 

Matters  in  abatement  and  relating  to  the  jurisdiction  of  the  court 
are  preliminary  in  their  nature,  and  must  be  taken  advantage  of  by 
a  plea,  and  cannot  be  by  a  general  answer  which  admits  the  right 
and  capacity  of  the  plaintiff  to  sue.^ 

The  office  of  a  demurrer  to  a  bill  is  to  present  the  question  of  the 
right  to  maintain  it,  admitting  all  its  allegations  to  be  true.  The 
court  will  not  therefore  examine,  aliunde,  what  facts  might  or 
might  not  defeat  it,  for  this  is  the  office  of  an  answer  or  plea.* 

The  office  of  a  plea  is  to  furnish  some  fact  or  facts  not  shown  by- 
the  bill,  but  which,  if  stated  therein,  would  have  made  the  bill 
demurrable. 

For  forms  of  pleas  and  answers,  see  post,  Nos.  47,  48. 

§  239.  Argument  on  demurrer  or  plea. — The  plaintiff  may  set 
down  the  demurrer  or  plea  to  be  argued,  or  he  may  take  issue  on 
the  plea.  If,  upon  issue  taken,  the  facts  stated  in  a  plea  be  deter- 
mined for  the  defendant,  they  avail  him  so  far  as  in  law  they  ought 
to  avail  him.^  If  a  bill  in  chancery  avers  that  the  defendant  is  a 
citizen  of  a  state  other  than  that  of  which  the  plaintiff  is  a  citizen, 
the  issue  therein  should  be  raised  by  a  plea  to  the  jurisdiction  of 
the  court.^  The  complainant  should  either  demur  to  a  plea  and  set 
it  down  for  argument,  in  which  case  he  admits  the  facts  stated  in 
the  plea,  but  denies  their  legal  sufficiency  to  prevent  the  relief 
claimed  in  the  bill,  or  he  should  reply  to  the  plea,  denying  the  truth 

^  Equity  Rule  32.     But  the  confed-         ^  Livingstone  v.  Story,  1  Pet.  351, 
eracy  clause  may  be  omitted :  Equity        *  Ocean  Ins.  Co.  v.  Fields,  2   Storv 

Rule  21.  59. 

^  Livingstone  v.  Story,  9  Pet.  632  ;         ^  Equity  Rule  33. 
Heath  v.  Erie  R.  Co.,  8  Blatch.  347.  «  Wickliffe  v.  Owings,  17  How.  47. 


200  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

of  the  statements  of  the  same,  or  some  of  them,  in  which  case  he 
admits  that  if  the  controverted  facts  are  true,  then  they  are  sufficient 
in  law  to  bar  a  recovery.  And  if  they  are  proved  to  be  true,  the 
bill  should  be  dismissed.' 

§  240.  Costs  •where  the  demurrer  or  plea  is  overruled. — If  upon  a 
hearing  of  a  demurrer  or  plea  it  is  overruled,  the  plaintiff  is  entitled 
to  his  costs  up  to  that  time,  unless  the  court  is  satisfied  that  the 
defendant  had  good  ground  to  interpose  the  same,  and  that  it  was 
not  interposed  vexatiously  or  for  delay.  Upon  the  overruling* of  a 
demurrer  or  plea,  the  defendant  must  be  assigned  to  answer  the  bill, 
or  so  much  thereof  as  is  covered  by  the  demurrer,  the  next  succeed- 
ing rule  day,  or  at  such  other  period  as,  in  the  opinion  of  the  court, 
it  can  be  done  consistently  with  justice  and  the  rights  of  the  de- 
fendant, in  default  of  which  the  bill  will  be  taken  as  confessed  and 
the  matter  proceeded  in  and  decreed  accordingly.^  If  a  decree  pro 
confesso  is  taken  before  the  time  given  for  answer,  it  is,  of  course, 
irregular  and  may  be  set  aside  on  motion.^  If  a  demurrer  to  a  bill 
is  interposed  by  one  of  several  defendants  and  overruled,  and  there 
is  a  failure  of  all  the  defendants  to  answer  within  the  required  time, 
the  bill  will  be  taken  as  confessed  as  to  all  of  them.* 

§  241.  Amendment  of  a  bill  on  allowance  demurrer;  costs. — If 
the  demurrer  or  plea  is  sustained,  the  court  may  allow  the  plaintiff 
to  amend  the  bill  upon  such  terms  as  it  shall  deem  reasonable;  but 
the  defendant  is  entitled  to  his  costs.  The  allowance  of  an  amend- 
ment is  in  the  discretion  of  the  court,  and  an  order  refusing  leave 
to  amend  is  not  subject  to  review  in  the  Supreme  Court.^ 

A  demurrer  or  plea  cannot  be  held  bad  and  overruled  upon  argu- 
ment merely  because  it  does  not  cover  so  much  of  the  bill  as  it 
might  have  done.^  It  may  cover  a  part  only  of  the  bill,  and  the 
defendant  may  answer  the  balance. 

§  242.  Effect  of  failure  to  reply. — If  the  plaintiff  does  not  reply 
to  any  plea,  or  set  down  any  plea  or  demurrer  for  argument  on  the 
rule  day  when  the  same  is  filed,  or  on  the  next  rule  day,  he  is 
deemed  to  admit  the  truth  and  sufficiency  thereof,  and  his  bill  must 

^  Rhode  Island  v.  Massachusetts,  14  ^  Equity  Rule  35;  National  Bank «?. 

Pet.  21U.  Carpenter,  lUl    U.    S.    567  ;  Hunt  v. 

■'  Equity  Rule  34  ;  Bank  of  U.  S.  v.  Louis,  2  Mason  342. 

White,  8  Pet.  262.  «  Fer«;uson  v.  Ollarra,  1  Pet.  (C.  C.) 

^  Fellows  V.  Hull,  3  McLean  4^7.  49S  ;  Equity  Rules  36,  37. 

^  Suydam  v.  Beals,  4  McLean  12. 


CIRCUIT    COURTS — SUITS   IN    EQUITY.  201 

be  dismissed  of  course,  unless  the  judge  shall  allow  liim  further 
time  for  that  purpose.  A  replication,  as  we  have  noticed,  is  an  ad- 
mission of  the  suflSciency  of  the  plea,  and  all  the  defendant  has  to 
do  is  to  prove  it  true.^ 

§  243.  Effect  of  the  answer  as  evidence. — The  general  rule  in 
chancery  practice  is  that  averments  of  the  answer  of  the  defend- 
ant uncontradicted  on  the  trial  are  conclusive  evidence  in  his  favor  ;- 
and  if  it  admits  averments  of  the  bill,  but  insists  upon  matters  by 
way  of  avoidance  of  such  facts,  the  plaintiif  need  not  prove  the 
facts  admitted,  and  the  burden  is  on  the  defendant  to  prove  the 
matters  in  avoidance.  So  the  general  rule  in  chancery  is  that,  if 
the  facts  charged  in  a  bill  as  the  ground  for  a  decree  are  positively 
denied  by  the  answer,  the  answer  in  this  respect  is  equivalent  to 
the  adverse  evidence  of  at  least  one  witness ;  and  if  the  averments 
of  the  bill  w^iich  are  thus  denied  are  sustained  by  only  one  wit- 
ness, the  court  would  ordinarily  be  compelled  to  dismiss  the  bill. 
But  if  the  averments  thus  contradicted  are  supported  by  one  wit- 
ness, corroborated  by  facts  and  circumstances  established  by  the 
proof,  it  may  be  sufficient  to  outweigh  the  answer,  unless  the  latter 
is  also  supported  by  other  proof.^ 

The  matters  of  the  bill  not  denied  by  the  answer,  or  admitted, 
are  considered  as  true ;  but,  as  a  general  rule,  the  answer  of  one 
defendant  cannot  be  used  as  evidence  against  his  co-defendant ;  nor 
can  the  admissions  in  the  answer  of  an  agent  be  evidence  against 
his  principal ;  nor  can  the  admissions  of  an  agent,  in  pais,  be  evi- 
dence against  his  principal  unless  they  were  a  part  of  the  res  gesta.* 
If,  however,  one  defendant  claims,  as  a  defence,  rights  or  interests 
derived  from  or  through  his  co-defendant,  the  answer  to  the  latter 
may  be  proper  evidence  against  the  former.^ 

The  general  rule  above  stated,  relating  to  the  answer  as  evidence, 
has  been  somewhat  limited  and  modified  by  a  general  rule  promul- 
gated by  the  Supremu  Court,  as  we  shall  hereafter  notice.^ 

^  Equity  Rule  38;  Hughes  w.  Blake,  4  How.  185;  Higbee   v.   Hopkins,   1 

6  Wh.  453  ;  Poultney  v.  La  Fayette,  Wash.  230. 

3  How.  81.  *  Leeds   v.  Marine  Ins.  Co.,  2  Wh. 

^  Lenox  v.  Front,  3  Wh.  520  ;  Clark  380  ;  Clark's  Ex'r  e.  Van  lleirasdyk, 

V.    White,    12    Pet.    178;  Ttandall  v.  9  Cr.  153. 

Phillips,  3  Mason  378.  ^  Field  v.  Holland,  6  Cr.  8  ;  Osborne 

^  Union  Bank  v.  Geary,  5  Pet.  98  ;  v.  The  President,  Directors,  etc.,  9Cr. 

Carpenter  v.  The  Providence  Ins.  Co.,  738. 

^  Amended  Equity  Rule  41,  post. 


202  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

§  244.  Interrogating  part  of  the  bill ;  answer  to. — It  is  not  essen- 
tial to  interrogate  the  defendant  specially  and  particularly  upon  any 
statement  of  the  hill,  unless  the  complainant  desires  to  do  so  to 
obtain  a  discovery.  If,  however,  he  inserts  interrogatories  in  the 
interrogating  part  of  it,  they  should  be  divided  as  conveniently  as 
may  be  from  each  other,  and  numbered  consecutively  1,  2,  3,  etc.; 
and  those  interrogatories  which  each  defendant  is  required  to 
answer,  where  there  are  more  than  one,  must  be  specified  in  a  note 
at  the  foot  of  the  bill  to  this  effect:  "The  defendant,  A.-B.,  is 
required  to  answer  the  interrogatories  numbered  respectively  1,  2, 
3,"  etc.  "The  defendant,  C.  D.,  is  required  to  answer  the  inter- 
rogatories numbered  respectively,"  etc.^ 

§  245.  When  the  answer  is  not  evidence. — We  have  noticed  the 
general  rule  in  chancery  in  reference  to  the  answer  as  evidence. 
But  this  has  been  restricted  in  certain  cases  by  the  ruks  of  practice 
in  equity  prescribed  by  the  Supreme  Court.  An  amendment  to 
Equity  Rule  No.  41  (December  term,  1871)  provides:  "If  the 
complainant,  in  his  bill,  shall  waive  an  answer  under  oath,  or  shall 
only  require  an  answer  under  oath  with  regard  to  certain  specified 
interrogatories,  the  answers  of  the  defendant,  though  under  oath, 
except  such  parts  thereof  as  shall  be  directly  responsive  to  such, 
interrogatories,  shall  not  be  evidence  in  his  favor,  unless  the  cause 
is  set  down  for  hearing  on  the  bill  and  answer  only ;  but  may, 
nevertheless,  be  used  as  an  affidavit  with  the  same  effect  as  hereto- 
fore, on  a  motion  to  grant  or  dissolve  an  injunction,  or  on  any  other 
incidental  motion  in  a  cause."  But  this  does  not  prevent  the  defend- 
ant from  becoming  a  witness  in  his  own  behalf,  under  section  858 
of  the  Revised  Statutes,  which  provides  that  no  witness  shall  be 
excluded  in  any  civil  action  because  he  is  a  party  or  interested  in 
the  issue  tried,  except  in  certain  cases. 

§  246.  Note  at  the  foot  of  the  bill  treated  as  a  part  of  the  bill. — 
By  the  provisions  of  the  rule  last  referred  to,  the  complainant  may 
only  require  an  answer  under  oath  to  certain  interrogatories  to  be  spec- 
ified in  a  note  at  the  foot  of  the  bill.  This  note  is  considered  and 
treated  as  a  part  of  the  bill,  and  any  alteration  in  or  addition  to  such 
note  after  the  bill  is  filed  will  be  considered  and  treated  as  an  amend- 
ment of  the  bill.^     The  words  preceding  the  interrogating  part  of 

^  Equity  Rule  40,  as  amended,  Dec.         ^  Equity  Rule  42. 
term,  1850, 10  How.  5 ;  Equity  Rule  41. 


CIRCUIT    COURTS — SUITS    IN    EQUITY.  203 

a  bill  should  be  in  the  form  or  to  the  effect  following:  "  To  the  end, 
therefore,  that  the  defendants  may,  if  they  can,  show  why  your 
orator  should  not  have  the  relief  hereby  prayed,  and  may  upon  their 
several  and  respective  corporal  oaths,  and  according  to  the  best  and 
utmost  of  their  several  and  respective  knowledge,  remembrance, 
information  and  belief,  full,  true,  direct  and  perfect  answer  make 
to  such  of  the  several  interrogatories  hereinafter  numbered  and  set 
forth  as  by  the  note  hereunder  written  they  are  respectively  re- 
quired to  answer ;  that  is  to  say — 

"  1.  Whether,  etc. 

"2.  Whether,  etc."^ 

§  247.  Interrogatories  a  defendant  may  decline  to  answer. — A 
defendant  may,  by  answer,  decline  answering  any  interrogatory,  or 
part  of  an  interrogatory,  from  the  answering  of  which  he  might 
have  protected  himself  by  demurrer  ;  and  he  is  at  liberty  so  to 
decline,  notwithstanding  he  shall  answer  other  parts  of  the  bill 
from  which  he  might  have  protected  himself  by  demurrer.^ 

§  248.  Replication  to  answer.— No  special  replication  to  any  answer 
is  allowed  to  be  filed.  But  if  any  matter  alleged  in  the  answer 
shall  make  it  necessary  for  the  plaintiff  to  amend  his  bill,  he  may 
obtain  leave  to  amend  the  same  with  or  without  the  payment  of  costs, 
as  the  court  or  a  judge  thereof  may  in  his  discretion  direct.^  Spec- 
ial replications  can  no  longer  be  used  in  chancery.  If,  from  the 
nature  of  the  answer,  it  becomes  necessary  to  prove  other  matters 
than  those  contained  in  the  bill,  the  proper  practice  would  be  to 
amend  the  bill  in  this  respect,  and  insert  the  proper  and  necessary 
averment  therein.  Thus  if  a  suit  is  brought  in  equity  to  restrain 
the  use  of  a  machine  on  the  ground  of  an  infringement  of  a  patent 
thereon,  and  the  defendant  in  his  answer  sets  up  a  license  therefor, 
the  plaintiff  cannot  prove  an  abandonment  of  the  license  under  a 
special  replication,  but  should  amend  his  bill  and  allege  such  aban- 
donment.* So  special  facts  in  excuse  for  not  bringing  suit  within  the 
period  prescribed  by  the  Statute  of  Limitations  should  be  set  forth 
in  the  bill,  such  as  coverture,  minority  or  residence  abroad.  If 
these  matters  are  omitted,  the  bill  may  be  amended  in  this  respect 
after  answer,  on  leave  of  court,  but  they  cannot  be  set  up  by  special 

1  Equity  Rule  43.  ^  Equity  Rule  45 ;  Dupontl  v.  Massy, 

2  Equity  Rule  44.  4  Wat^h.  128. 

■*  Wilson  V.  StoUy,  4  McLean  275. 


204  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

replication.^  Although  amendments  of  bills,  after  answer,  cannot 
be  made  without  leave  of  the  court,  objections  to  amendments  without 
leave  cannot  be  made  for  the  first  time  in  the  appellate  court.^ 

In  case  of  an  amendment  of  a  bill  after  an  answer  filed,  the 
defendant  is  required  to  put  in  a  new  or  supplemental  answer  on  or 
before  the  next  succeeding  rule  day,  which  would  be  the  first  Mon- 
day of  the  next  succeeding  month  after  that  on  which  the  amend- 
ment or  amended  bill  is  filed,  unless  the'  time  is  extended  or  it  is 
otherwise  ordered  by  the  court.  And  in  case  of  the  default  of  the 
defendant  so  to  do,  like  proceedings  may  be  had  as  in  case  of  omis- 
sion of  a  defendant  to  put  in  answer  to  an  original  bill.* 

§  249.  Parties  to  bills;  absent  parties. — It  is  provided  by  Rule  47 
in  equity  that  "  in  all  cases  where  it  shall  appear  to  the  court  that 
persons  who  might  otherwise  be  deemed  necessary  or  proper  parties 
to  the  suit  cannot  be  made  parties  by  reason  of  their  being  out  of 
the  jurisdiction  of  the  court,  or  incapable  otherwise  of  being  made 
parties,  or  because  their  joinder  \^ould  oust  the  jurisdiction  of 
the  court  as  to  the  parties  before  the  court,  the  court  may  in  their 
discretion  proceed  in  the  cause  without  making  such  persons  parties  ; 
and  in  such  cases  the  decree  shall  be  without  prejudice  to  the  rights 
of  the  absent  party." 

If  the  cause  can  be  fully  and  finally  decided  between  the  parties 
litigant  without  bringing  in  others  who  might  also  be  made  parties, 
and  the  latter  cannot  be  reached  by  the  process  of  the  court,  as 
where  they  cannot  be  served  with  process  within  the  district,  such 
parties  may  be  dispensed  with,  and  the  cause  be  determined  between 
the  parties  before  the  court.^  Nor  will  the  improper  joinder  of  par- 
ties who  are  citizens  of  the  same  state  affect  the  jurisdiction  of  the 
court  if  a  decree  may  be  properly  entered  as  between  the  parties 
who  are  properly  before  the  court. ^ 

The  general  doctrine  of  chancery  practice,  however,  is  that  all 
persons  materially  interested  in  the  subject-matter  of  the  suit  ought 
to  be  made  parties,  either  as  plaintiffs  or  defendants;  but  this  gene- 
ral rule  is  for  the  convenient  and  equitable  administration  of  justice, 
and  its  application  is  more  or  less  in  the  sound  discretion  of  the 
court,  and  will  usually  be  restricted  to  parties  whose  interests  are 

1  Taylor?;.  Benham,  5  How.  233.  ^  Mallow  v.  Hinde,    12   Wh.    193; 

2  Clements  v.  Moone,  6  Wall.  299.  Vattier  v.  Hinde,  7  Pet.  252. 

3  Equity  Rule  46.  For  form  of  rep-  »  Carneal  v.  Banks,  10  Wh.  181; 
lieation,  see  post,  No.  52.  Vattier  v.  Hinde,  7  Pet.  252. 


CIRCUIT   COURTS — SUITS    IN    EQUITY.  205 

in  issue,  and  to  be  affected  by  the  decree.  And  in  all  cases  tbe 
decree  will  be  so  framed  and  modified  as  not  to  prejudice  tbe  inter- 
ests of  those  not  made  parties  to  the  suit,  or  properly  served  with 
original  process.^  A  court  of  equity  should  aim  to  do  complete 
justice  by  embracing  the  whole  subject,  and  deciding  upon  and  set- 
tling the  rights  of  all  persons  interested  in  the  subject  of  the  suit, 
in  order  to  prevent  future  litigation  ;^  and  if  the  rights  of  an  absent 
party  must  necessarily  be  affected  and  prejudiced  by  a  decree,  it 
should  not  be  rendered,  and  objection  to  such  a  decree  can  be  taken 
not  only  upon  the  hearing  but  in  the  appellate  court.^  Where  real 
property,  after  being  mortgaged,  was  conveyed  in  trust  for  the  ben- 
efit of  children,  including  those  in  being  and  those  that  might  be 
born,  and  a  bill  was  brought  to  foreclose  the  mortgage,  it  was  held 
that  all  the  children  in  esse  at  the  time  of  filing  the  bill  were  indis- 
pensable parties  to  bar  a  right  of  redemption,  and  that  a  decree 
against  the  trustee  would  not  bind  the  cestui  que  trusts.*  So  part 
owners  or  tenants  in  common  of  real  property  have  an  interest  in 
the  subject-matter  of  a  suit  to  partition  the  same,  and  each  one  is 
so  intimately  connected  with  his  co-tenant  that  if  they  cannot  all 
be  subjected  to  the  jurisdiction  of  the  court,  the  bill  should  be 
dismissed.^ 

But  a  court  of  equity  of  the  United  States  will  not  suffer  its 
jurisdiction  to  be  ousted  because  of  the  non-joinder  of  merely  for- 
mal parties  who  are  not  entitled  to  sue  or  liable  to  be  sued  in  its 
courts.^  Where  four  parties  had  a  dispute  about  their  respective 
rights  and  interests  in  the  stock  of  a  railroad  company,  and  entered 
into  a  contract  of  settlement  by  which  the  stock  was  to  be  divided 
in  certain  proportions  between  them,  but  one  of  the  parties  thereto 
refused  to  carry  out  the  agreement,  and  another  party  filed  a  bill  to 
compel  him  to  stand  by  the  agreement  and  to  carry  it  into  execution, 
to  which  the  former  answered,  objecting  that  the  other  parties  to  the 
contract  of  settlement  should  have  been  made  parties  to  the  bill,  it 

1  Mechanics'  Banki'.  Setons,  1  Pet.  also  Ribon  v.  Railroad  Co.,  16  Wall. 
299.  446. 

2  Caldwell  V.  Taggart,  4  Pet.  190;  ^  Barney  w.  The  City  of  Baltimore,  6 
Marshal  v.  Beverly,  5  Wla.  313  ;  Banks  Wall.  280 ;  Traders'  Bank  v.  Campbell, 
v.  Carrolton  Railroad,  11  Wall.  624.  14  Wall.  87.     See  also  Hoxie  v.  Carr, 

^  Coiron  v.  Mellandon,  19  llow.  1  Sum.  173 ;  Marshall  v.  Beverly,  5 
113;  Joy  V.  Wirtz,  1  Wash.  517.  Wh.  313. 

*  Clark  V.  Reyburn,  8  Wal.  318.    See        «  AVormley  v.  W^ormley,  8  Wh.  421  ; 

atife,  I  12.5,  et  seq. 


206  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

■was  held  that,  as  no  relief  was  asked  of  the  other  parties,  they  were 
not  necessary  parties  to  the  bill.^  So  where  a  person  filed  a  bill  as 
administrator  of  a  deceased  partner,  to  have  an  account  of  the 
partnership  concerns,  and  alleged  in  his  bill  that  he  was  the  sole 
heir  of  the  deceased  partner,  it  was  held  that  the  fact  that  he  was 
not  so  could  not  affect  the  case,  and  that  the  bill  was  not  objection- 
able for  the  want  of  necessary  parties,  as  a  decree  in  the  case  in 
his  favor  would  not  affect  the  rights  of  heirs  who  might  claim 
a  distribution  of  the  money  which  might  be  decreed  the  com- 
plainant.^ 

§  250.  When  parties  are  numerous. — Although  it  is  a  general 
rule  in  equity  that  all  persons  interested  in  the  subject-matter  of 
the  suit  should  be  made  parties,  to  this  there  is  an  exception,  as 
where  the  parties  are  so  numerous  as  to  make  it  impracticable,  in 
which  case  a  few,  representing  the  interests  of  the  many,  are  suf- 
ficient.^ This  exception  is  also  embraced  in  the  forty-eighth  rule 
of  practice  prescribed  by  the  Supreme  Court  for  the  courts  of 
equity  of  the  United  States.  It  provides  as  follows  :  "  Where  the 
parties  on  either  side  are  very  numerous,  and  cannot,  without  man- 
ifest inconvenience  and  oppressive  delays  in  the  suit,  be  all  brought 
before  it,  the  court  in  its  discretion  may  dispense  with  making  them 
all  parties,  and  may  proceed  in  the  suit,  having  sufficient  parties 
before  it  to  represent  all  the  adverse  interests  of  the  plaintiffs  and 
the  defendants  in  the  suit  properly  before  it.  But  in  such  cases 
the  decree  shall  be  without  prejudice  to  the  rights  and  claims  of  all 
the  absent  parties."* 

And,  as  we  have  seen,  proper  but  not  necessary  parties  to  a  bill 
may  be  omitted  or  not  served  with  process ;  as  where  they  cannot 
be  made  parties  without  ousting  the  court  of  jurisdiction.^ 

§  251.  Trustees  represent  parties  beneficially  interested  ;  execu- 
tors and  administrators. — In  all  suits  concerning  real  estate  which  is 
vested  in  trustees  by  devise,  if  they  have,  by  virtue  of  the  devise, 
power  to  sell  and  give  discharges  for  the  proceeds,  and  charge  of 
the  rents  and  profits  of  the  estate,  they  may  properly  represent,  as 

1  French   v.   Shoemaker,  14  WalL         ^  ]yiiilio;an  v.   Millese,  3  Cr.    220; 

314.  Siinnis  v.  Guthrie,  9  Cr.  20  ;    Kerr  v. 

=*  Moore   v.    Huntington,  17  Wall.  Watts,  6  Wh.  550  ;  Potter  w.  Gardner, 

417.  12  Wh.  498  ;  Hook  v.  Payne,  14  Wall. 

•^  Mandeville  v.  Risj^s,  2  Pet.  482.  252  ;  ante,  §  125,  et  seq. 

*  West  V.  Randall '2  Mason  181. 


CIRCUIT    COURTS — SUITS    IN    EQUITY.        *  207 

parties  to  a  bill,  the  persons  beneficially  interested  in  the  estate  or 
the  rents  and  profits  thereof,  in  the  same  manner  and  to  the  same 
extent  as  executors  and  administrators  in  suits  concerning  personal 
estate  represent  the  persons  beneficially  interested  in  such  personal, 
estate ;  and  in  such  cases  it  is  not  necessary  to  make  the  persons 
beneficially  interested  in  such  real  estate,  or  the  rents  and  profits 
thereof,  parties  to  the  suit.  But  the  court  may,  upon  consideration 
of  the  matter  on  the  hearing,  order  such  persons  or  any  of  them  to 
be  made  parties.^ 

§  252.    ■When   an   heir-at-law  is  not  a  necessary  party ;  joint  and 
several  debtors. — It   is    not    necessary   to    make   the    heirs-at-law 
parties  in  suits  brought  to  compel  the  execution  of  the  trusts  of  a 
will,  but  the  plaintiff  is  at  liberty  to  do  so  where  he  desires  to  have  . 
the  will  established  against  them.^ 

And  if  the  plaintiff  has  a  joint  and  several  demand  against 
several  persons  either  as  principals  or  sureties,  it  is  not  necessary 
to  bring  before  the  court  all  the  persons  liable  on  the  contract  or 
other  demand,  but  he  may  proceed  against  one  or  more  of  them 
severally  liable.^ 

§  253.  Defect  of  parties  suggested  in  the  ans-w^er ;  practice. — If 
the  complainant  omits  to  bring  before  the  court  persons  who  are 
necessary  parties,  and  the  defect  does  not  appear  on  the  face  of  the 
bill,  the  proper  practice  would  be  to  set  forth  the  defect  by  a  plea 
or  answer.  If  it  is  patent  on  the  face  of  the  bill,  however,  it  could 
be  taken  advantage  of  by  demurrer.*  If  it  is  suggested  in  the 
answer  that  there  is  a  defect  of  parties  to  the  bill,  the  plaintiff  is 
at  liberty  to  set  the  cause  for  hearing  on  that  objection  only ;  but 
it  is  necessary  for  him  to  state,  in  the  entry  of  the  hearing  in  the 
clerk's  order-book,  the  purpose  for  which  the  same  is  set  down,  to 
the  following  effect,  that  is  to  say :  "  Set  down  upon  the  defendant's 
objection  for  want  of  parties."  If  he  shall  not  so  set  down  the 
cause  for  defect  of  parties,  he  will  not,  as  of  course,  be  alloAved  to 
amend  his  bill  in  this  respect  on  the  hearing  of  the  cause.^ 

But  if  on  a  final  hearing  a  bill  is  dismissed  on  the  ground  of  a 
defect  of  parties,  it  should  be  without  prejudice,  as  the  complainant 
ought  to  be  permitted  to  file  a  bill  against  all  the  proper  and  neces- 

^  Equity  Rule  49;  Potter  v.  Gard-        ^  Equity  Rule  51. 
ner,  12  Wh.  498.  *  Story  v.  Livingstone,  13  Pet.  359. 

''  Equity  Rule  50.  ^  Equity  Rule  52. 


208  FEOERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

sary  parties  at  any  time  afterwards.^  If,  however,  no  objection  is 
made  to  the  bill  for  the  want  of  necessary  parties,  either  by  demur- 
rer, plea  or  answer,  the  court  is  at  liberty,  on  the  hearing  of  a 
.cause,  and  on  objection  being  made  by  the  defendant  on  this  ground, 
to  proceed  to  a  decree  saving  the  rights  of  the  absent  parties.^  But, 
if  a  decree  cannot  be  rendered  without  manifest  prejudice  to  the 
rights  of  those  who  should  have  been  made  parties,  no  decree  should 
be  entered,  although  no  objection  is  made  on  that  ground.^ 

§  254.  Nominal  parties  need  not  appear. — The  parties  served 
with  a  subpoena  need  not  appear  and  answer  a  bill,  where  no 
account,  payment,  conveyance  or  other  direct  relief  is  sought 
against  them,  unless  the  plaintiff  specially  requires  them  to  do  so 
by  the  prayer  of  his  bill.  But  they  may  appear  and  answer  at 
their  option.  In  case,  however,  they  do  not  appear  and  answer, 
they  will  be  bound  by  all  the  proceedings  in  the  cause ;  and  if  the 
plaintiff  shall  require  them  to  appear  and  answer,  they  are  entitled 
to  all  the  costs  of  the  proceedings  against  them,  unless  the  court 
shall  otherwise  direct.^  The  omission,  as  we  have  seen,  of  merely 
formal  parties  will  not  oust  the  jurisdiction  of  the  court.  If  com- 
plete relief  can  be  given  in  a  cause  to  those  who  seek  it,  without 
affecting  the  interests  of  others  not  made  parties,  a  decree  for 
relief  will  be  granted.^ 

§  255.  Injunctions;  when  granted  of  course. — If  an  injunction  is 
asked  for  in  the  bill  to  stay  proceedings  at  law,  and  the  defendant 
does  not  enter  his  appearance  and  plead,  demur  or  answer  to  the 
same  within  the  time  prescribed  therefor  by  the  rules  of  practice  in 
equity,  the  plaintiff  is  entitled  as  of  course  to  such  injunction,  upon 
motion  and  without  notice.  Special  injunctions  are  grantable  only 
on  due  notice  to  the  adverse  party,  by  the  court  in  term  time  or  by 
a  judge  thereof  in  vacation,  after  a  hearing.  But  the  hearing  may 
be  ex  ijarte,  if  the  adverse  party  does  not  appear  at  the  time  and 
place  designated  in  the  notice.  And  in  case  an  injunction  is 
awarded  in  vacation,  it  will,  unless  previously  dissolved  by  the 
judge  granting  the  same,  continue  until  the  next  term  of  the  court 

1  Kendicr  v.  Dean,   97   U.    S.   423;  299;  Legee  w.  Thomas,  3  Blatch.  11 ; 

Barney    v.   Baltimore   City,    6  Wall.  Story  v.  Livingstone,  13  Pet.  359. 

28U  ;  Home  v.  Mullen,  22  Wall.  42.  *  Equity  Rule  54. 

^  Equity  Rule  53.  ^  Joy    v.   Wirtz,     1     Wash.     517 ; 

^  AVallace  ».  Holmes,  &  Blatch.  65;  Wormley  v.  Wormley,   8    Wh.   421; 

Mechanics'   Bank   v.    Setons,    1    Pet.  Mechanics'  Bank  v.  Setons,  1  Pet.  299. 

See  also  Young  v.  Pott,  4  Wash.  521. 


CIRCUIT    COURTS — SUITS    IN    EQUITY.  209 

or  until  dissolved  by  some  other  order  of  the  court.*  Unless  other 
parties  than  those  in  the  suit  at  law  are  made  parties  to  the  bill  to 
enjoin,  and  different  interests  are  involved,  a  bill  to  enjoin  a  judg- 
ment at  law  is  not  treated  as  an  original  bill ;  but  if  the  bill  makes 
others  parties,  having  different  interests,  it  is  considered  an  original ' 
bill.-  For  form  of  order  for  injunction,  see  post,  No.  70  ;  form  of 
injunction,  see  No.  255. 

§  256.  Bills  of  revivor  and  supplemental  bills;  abatement. — On 
general  principles  a  suit  is  abated  on  the  death  of  either  party, 
but  it  is  provided  by  Rule  56  for  the  equity  courts  of  the 
United  States  that  "whenever  a  suit  shall  become  abated  by  the 
death  of  either  party,  or  by  any  other  event,  it  may  be  revived  by 
a  bill  of  revivor,  or  a  bill  in  the  nature  of  a  bill  of  revivor,  as  the 
circumstances  of  the  case  may  require."  The  bill  should  be  filed 
by  the  proper  parties  entitled  to  revive  the  suit,  and  may  be  filed 
in  the  office  of  the  clerk  at  any  time ;  and  upon  the  suggestion  of 
the  facts  the  process  of  subpoena  should  be  issued  as  a  matter  of 
course  by  the  clerk,  requiring  the  proper  representatives  of  the 
other  party  to  appear  and  show  cause,  if  any,  why  the  cause  should 
not  be  revived.  If  at  the  next  rule  day  occurring  after  fourteen 
days  from  the  service  of  said  process  of  subpoena,  that  is  to  say,  the 
first  Monday  of  the  month  after  fourteen  days  from  the  service  of 
the  same,  no  cause  shall  be  shown,  the  suit  will  stand  revived  as  of 
course.^ 

In  such  a  case  the  practice  is  to  allow  on  the  final  hearing,  the 
use  of  any  testimony  taken  before  the  abatement,  and  which  might 
have  been  used  if  no  abatement  had  occurred.  The  suit,  after 
revival,  proceeds  in  the  new  form,  unaffected  by  the  change.*  But 
it  seems  a  bill  of  revivor  cannot  be  entertained  where  the  original 
jurisdiction  depended  upon  the  proper  citizenship  of  the  parties, 
and  the  controversy  which  it  seeks  to  revive  will  be  between  citizens 
of  the  same  state,  although  there  was  the  requisite  citizenship  of  the 
original  parties ;  as  where  a  bill  of  revivor  is  brought  by  an  admin- 
istrator who  is  a  citizen  of  the  same  state  with  the  defendant.-^ 

For  forms  in  such  cases,  see  post,  No.  38,  et  seq. 

1  Equity  Rule  55.  3  Equity    Rule    56  ;    Equity    Rule 

^  Simms  v.  Guthrie,  9  Cr.  19  ;  Dunn  2. 

V.  Clark,  8  Pet.  1.     See  also  Marsh  v.  *  Vattier  v.  Hinde,  7  Pet.  252. 

Bennett,  5  McLean  117  ;  Worcester  tJ.  ^Clarke    v.    Mathews,      2      Sum. 

Truman  &  Smith,  1  Id.  483.  262. 

14 


210  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

§  257.  When  supplementary  bills  are  proper. — If  a  suit  in  equity 
becomes  defective  by  some  event  occurring  after  the  filing  of  the 
bill,  as,  for  instance,  by  the  change  of  interest  of  parties  in  the 
matter  in  controversy,  or  for  any  other  reason,  a  supplemental  bill 
or  a  bill  in  the  nature  of  a  supplemental  bill  may  be  necessary. 
Leave  to  file  the  same  may  be  granted  by  any  judge  of  the  court  on 
any  rule  day,  upon  any  proper  cause  shown  and  on  due  notice  to 
the  other  party.  If  leave  is  granted,  the  defendant  must  demur, 
plead  or  answer  thereto  on  the  next  succeeding  rule  day  after  the 
supplemental  bill  is  filed  in  the  clerk's  office,  unless  some  other  time 
is  assigned  by  a  judge  of  the  court. ^  But  it  is  not  necessary,  in 
any  bill  of  revivor  or  supplemental  bill,  to  set  forth  any  of  the 
statements  of  the  original  bill,  unless  the  special  circumstances  of 
the  case  may  require  it.^ 

§  258.  Answers  and  amendments  thereof. — We  have  remarked 
that  the  rules  in  equity  require  an  appearance  of  the  defendant,  hi 
person  or  by  attorney,  on  the  next  rule  day,  that  is,  the  first  Mon- 
day of  the  next  succeeding  month,  if  the  defendant  has  been  served 
with  process  twenty  days'before  that  time ;  if  not,  then  at  the  next 
succeeding  rule  day.  And  he  is  required  to  file  his  plea,  answer 
or  demurrer  to  the  bill  on  the  next  succeeding  rule  day  after  enter- 
ing his  appearance,  unless  the  court  shall,  for  cause  shown,  extend 
the  time.  In  default  of  which  the  plaintiff  may  enter  an  order, 
as  of  course,  in  the  order  book,  that  the  bill  be  taken  pro  confesso.^ 
And  unless  there  is  a  waiver  of  answer  under  oath,  the  defend- 
ant must  verify  it.  This  may  be  done  before  any  justice  or  judge 
of  any  court  of  the  United  States,  or  before  any  commissioner  ap- 
pointed by  any  circuit  court  to  take  testimony  or  depositions,  or 
before  any  master  in  chancery  appointed  by  any  circuit  court,  or 
before  any  judge  of  any  court  of  a  state  or  territory.* 

An  answer  may  be  amended  of  course,  in  any  matter  of  form,  or 
by  filling  up  a  blank,  or  correcting  a  date,  or  by  reference  to  a  docu- 
ment or  other  small  matter,  at  any  time  before  a  replication  is  put 
in,  or  the  cause  is  set  down  for  a  hearing  upon  the  bill  and  answer ; 
but  the  defendant  should  reverify  it  unless  there  is  a  waiver  of  the 
same.     After  a  replication  or  such  setting  down  for  a  hearing,  it 

'■  Equity    Rule    57 ;     Kennedy    v.  ^  See  mite,  §  225. 

Georgia    State   Bank,    8    How.    610;  *  Equity  Rule  59.    In  case  of  answer 

Jenkins  v.  Eldredge,  3    Story   299;  of  a  defendant  beyond  the  seas :  Read 

Parkhurst  v.  Kinsman,  2  Blatch.  72.  v.  Consequa.  4  Wli.  335 ;   Herman  v. 

^  Equity  Rule  58.  Herman,  4  Wash.  555. 


CIRCUIT   COURTS — SUITS   IN    EQUITY.  211 

cannot  be  amended  in  any  material  matters,  as  by  adding  new  facts 
or  defences,  or  qualifying  or  altering  the  original  statements,  except 
by  special  leave  of  the  court  or  a  judge  thereof,  upon  motion  and 
cause  shown,  after  due  notice  to  the  adverse  party,  supported  if 
required  by  aflSdavit.  If  granted,  the  court  or  judge  granting  the 
same  may  require  it  to  be  separately  engrossed  as  an  amendment 
to  the  original  answer,  so  as  to  be  distinguishable  therefrom.^ 

Leave  to  amend  an  answer  after  replication,  or  the  cause  is  set 
down  for  a  hearing,  will  not  ordinarily  be  granted  where  the  matter 
set  up  in  the  amended  answer  constitutes  a  new  defence,  and  es- 
pecially where  it  appears  that  the  matters  thus  set  up  could  with 
reasonable  diligence  have  been  introduced  into  the  original  answer.^ 
For  forms  of  answers  and  amended  answers,  see  post,  No.  48,  et  seq. 

§  259.  Answer;  exceptions  thereto. — If  an  answer  is  filed  on 
any  rule  day,  the  plaintiff  is  allowed  until  the  next  succeeding 
rule  day  to  file  exceptions  thereto  for  insufficiency,  unless  a  longer 
time  shall  be  allowed  for  that  purpose  upon  cause  shown  to  the 
court  or  a  judge  thereof;  and  if  no  exception  is  filed  thereto  within 
that  time,  the  answer  will  be  taken  to  be  sufficient.^ 

If  exceptions  are  taken  on  the  ground  that  certain  allegations 
of  the  bill  are  neither  answered,  admitted  nor  denied,  it  is  neces- 
sary to  inquire  whether  the  facts  charged  in  the  allegations  are 
material  and  might  contribute  to  establish  the  equity  of  the  bill. 
If  they  do  not,  the  exceptions  should  be  overruled.*  If  an  excep- 
tion to  an  answer  is  taken  on  the  ground  of  insufficiency,  it  should 
state  the  charges  in  the  bill,  the  interrogatories  applicable  thereto 
to  which  the  answer  is  responsive,  and  the  language  of  the  answer, 
so  that  the  court  may  determine  whether  it  is  sufficient  or  not ; 
and  any  exception  is  considered  as  waived  by  going  to  trial  on  the 
merits.^     For  forms  of  exceptions,  ?,qq  post,  No.  49. 

§  260.  "When  exceptions  will  be  set  dow^n  for  a  hearing ;  answ^er 
after  allowance. — If  exceptions  are  filed  to  an  answer  for  in- 
sufficiency, within  the  time  prescribed  by  the  rules  of  practice  in 
equity,  and  the  defendant  does  not  submit  to  the  same  and  file  an 

1  Equity  Rule  60.  *  Hardeman  v.  Harris,  7  How.  726. 

2  India  Rubber  Co.  v.  Phelps,  8  ^  Brooks  v.  Byam,  1  Story  296  ; 
Blatch.  85;  Grier  v.  Gregg  &  Wald,4  Kitridge  v.  Race,  92  U.  S.  116.  See 
McLean  202 ;  Walden  v.  Bodley,  14  as  to  construction  of  pleadings, 
Pet.  156.  Brown  v.  Pierce,  7  Wall.  205. 

'Equity  Rule  61. 


212  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

amended  answer  on  the  next  succeeding  rule  day,  the  defendant 
may  forthwith  set  them  down  for  a  hearing  on  the  next  succeeding 
rule  day  thereafter  before  the  court,  and  may  enter  as  of  course,  in 
the  order  book,  an  order  for  that  purpose.  If  he  shall  not  so  set 
down  the  same  for  a  hearing,  the  exceptions  shall  be  deemed  aban- 
doned, and  the  answer  must  be  deemed  sufficient ;  provided,  how- 
ever, that  the  court  or  any  judge  thereof  may,  for  good  cause 
shown,  enlarge  the  time  of  filing  exceptions  or  for  answering  the 
same  upon  such  terms  as  may  be  deemed  reasonable.^  If  the 
exceptions  are  allowed,  it  is  the  duty  of  the  defendant  to  put  in  a 
full  and  complete  answer  on  the  next  succeeding  rule  day,  other- 
wise the  bill  may  be  taken  as  confessed  so  far  as  the  matter 
referred  to  in  the  exceptions  is  concerned ;  or  the  plaintiff  at  his 
election  may  have  a  writ  of  attachment  to  compel  the  defendant  to 
make  a  better  answer  to  the  matter  of  such  exceptions,  from  which 
he  will  not  be  discharged  except  by  putting  in  such  answer,  and 
complying  with  such  other  terms  as  the  court  or  a  judge  may  direct.^ 
And  if  the  exceptions  shall  be  overruled,  or  the  answer  shall  be 
adjudged  insufficient,  the  prevailing  party  is  entitled  to  the  costs 
occasioned  thereby,  unless  otherwise  directed  by  the  court  or  a  judge 
thereof  at  the  time  of  the  hearing  of  the  exceptions.^  For  form  of 
exceptions,  see  post,  No.  49. 

§  261.  Replication  and  issue. — If  the  answer  shall  not  be  except- 
ed to,  or  shall  be  adjudged  sufficient,  the  plaintiff  is  required  to  file 
the  general  replication  thereto  on  or  before  the  next  succeeding  rule 
day  thereafter,  when  the  cause  will  be  deemed  at  issue  without  further 
pleading  on  either  side.  But  if  the  plaintiff  omits  to  file  a  replica- 
tion within  the  time  prescribed,  the  defendant  is  entitled  to  an  order, 
as  of  course,  for  the  dismissal  of  the  suit,  unless  the  court  or  a 
judge  thereof  shall,  upon  motion  for  cause  shown,  allow  a  replica- 
tion to  be  filed  nunc  pro  tunc,  and  the  plaintiff  submit  to  such  other 
terms  as  may  be  directed.  If  no  replication  is  filed,  the  answer  is 
taken  as  true,  and  no  evidence  will  be  allowed  to  contradict  it.* 
On  failure  to  put  in  a  general  replication  to  an  answer,  the  order 
of  dismissal  may  be  entered  by  the  clerk  of  course,  without  any 
application  to  the  court  or  a  judge.^ 

1  Equity  Rule  63,  Coleman   v.   Martin,  6  Blatch.  291  ; 

2  Equity  Rule  64.  Equity  Rule  66. 

^  Equity  Rule  65.  "  Robinson  v.  Satterlee,  3  Saw.  134. 

*  Pierce  v.  West,  1  Pet.  (C.  C.)  351 ; 


CIRCUIT   COURTS — SUITS    IN    EQUITY.  213 

The  rule  last  cited  provides  that  the  court  or  a  judge  thereof  may 
upon  motion,  and  for  cause  shown,  allow  a  replication  to  be  filed. 
Where  a  bill  was  dismissed,  but  before  the  final  decree  was  entered 
the  plaintiff  by  motion  asked  leave  to  file  a  general  replication  and 
to  take  testimony,  and  offered  to  pay  the  accrued  costs,  but  made 
no  suggestion  of  mistake  or  inadvertence,  it  was  held  that  the  motion 
must  be  denied.^     For  form  of  replication,  see  post,  No.  52. 

§  262.   Depositions ;  commissions  and  commissioners. — When  the 
cause  is  at  issue,  commissions  to  take  testimony  upon  interroga- 
tories may  jointly  or  severally  be  taken  out  by  the  parties.      If 
either  party  desires  so  to  do,  he  is  required  to  file  the  interroga- 
tories in  the  clerk's  office,  and  give  ten  days  notice  to  the  opposite 
party  to  file  cross  interrogatories,  before  the  issuing  of  the  com- 
mission.    If  no  interrogatories  are  filed  at  the  expiration  of   the 
time,  the  commission  may  issue  ex  parte.     The  commissioner  may 
be  designated  by  the  court  or  a  judge  thereof,  or  the  court  or  a 
judge    thereof  may   vest   in   the   clerk    power    to    name   commis- 
sioners to  take  testimony.      Either  party  may  give  notice  to  the 
other  that  he  desires  the  evidence  to  be  adduced  in  the  cause  to  be 
taken  orally,  and  thereupon  all  witnesses  to  be  examined  shall  be 
examined  orally  before  one  of  the  examiners  of  the  court,  or  before 
an  examiner  specially  appointed  by  the  court.     The  examiner  must 
in  such  a  case  be  furnished  with  a  copy  of  the  bill  and  answer,  if 
any,  and  the  parties  must  have  an  opportunity  to  be  present  on  such 
examination,  personally  or  by  their  counsel  or  solicitors,  and  the 
witnesses  are   subject    to    cross-examination    and   re-examination. 
The  evidence  must  be  taken  down  by  the  examiner,  in  writing,  in  a 
narrative  form,  unless  the  examiner  determines  that  it  shall  be  by 
questions  and  answers  in  special  instances.  When  completed  the  depo- 
sitions must  be  read  over  to  the  witness  and  signed  by  him  in  the  pres- 
ence of  the  parties  or  counsel,  or  such  of  them  as  may  attend.    But 
if  the  witness  shall  refuse  to  sign  the  deposition,  the  examiner  may 
sign  the  same,  and  he  may  state  any  such  special  matters  to  the  court 
as  he  shall  think  fit.     Any  question  or  questions  which  may  be 
objected  to  shall  be  noted  by  the  examiner  upon  the  deposition,  but 
he  cannot  decide  on  the  competency,  materiality  or  relevancy  of  such 
questions.     The  court  has  power  to  deal  with  the  costs  of  incompe- 
tent, immaterial  or  irrelevant  depositions,  or  parts  of  them,  as  may 
^  Ballenger  v.  Mackey,  14  Blatch.  355. 


214  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

be  just.     The  examiner  has  the  same  power  to  coerce  the  attendance 
of  witnesses  as  in  case  of  examination  on  written  interrogatories. 

The  examiner  in  such  cases  may  require  reasonable  notice  to  be 
given  of  the  time  and  place  of  examination  of  witnesses  to  the  oppo- 
site party ;  and  when  the  same  is  concluded,  the  deposition,  duly 
authenticated,  should  be  transmitted  by  him  to  the  clerk  of  the 
court,  and  be  filed  by  him. 

Testimony,  however,  may  be  taken  by  commission  on  written 
interrogatories  and  cross  interrogatories,  on  motion  to  the  court  in 
term  time,  or  to  a  judge  in  vacation,  for  special  reasons  satisfactory 
to  the  court  or  judge.  If  the  evidence  in  a  cause  is  to  be  taken 
orally,  the  court  may,  on  motion  of  either  party,  assign  a  time  within 
which  the  complainant  shall  take  his  evidence  in  support  of  his  bill, 
and  a  time  thereafter  within  which  the  defendant  must  take  his  evi- 
dence in  defence,  and  a  time  thereafter  in  which  the  complainant 
must  take  his  evidence  in  reply ;  and  no  further  evidence  can  be 
taken  in  the  cause  unless  by  agreement  of  the  parties  or  by  leave  of 
court  first  obtained  on  motion  for  cause  shown.  Parties  may  also 
agree  to  take  testimony  orally.^ 

For  forms  in  such  cases,  see  post,  Nos.  80,  81 ;  and  Commission- 
ers' Forms. 

§  263.  Three  months  allowed  after  the  cause  is  at  issue  for  the 
taking  of  testimony. — It  is  provided  by  a  rule  in  equity  that  three 
months  and  no  more  shall  be  allowed  for  the  taking  of  testimony 
after  the  cause  is  at  issue,  unless  a  court  or  a  judge  thereof  shall, 
upon  special  cause  shown  by  either  party,  enlarge  the  time ;  and 
no  testimony  taken  after  such  period  can  be  read  in  evidence  at 
the  hearing  except  as  aforesaid.^ 

This  rule  applies  to  the  testimony  of  both  parties  ;  and  the  ques- 
tion whether  the  time  should  be  enlarged  is  largely  in  the  sound 
discretion  of  the  court,  and  unless  there  should  be  a  clear  abuse  of 
this  discretion,  the  Supreme  Court  would  not  interfere.^ 

§  264.  Testimony  de  bene  esse ;  notice ;  form  of  the  last  interroga- 
tory.— If  after  any  bill  is  filed,  and  before  the  defendant  has  answered 
the  same,  an  affidavit  is  made  and  filed  in  the  office  of  the  clerk  of 

^  Equity  Rule  67.     Each  interroga-  Dod2;e  v.  Israel,  4  Wash.  323 ;  Richard- 

tory  should  be  answered  fully:  Ket-  son  v.  Golden,  3  Wash.  109;  Rhoades 

land  V.  Bissett,  1  Wash.  144;  Bell  v.  v.  Selin,  4  Wash.  715. 

Davidson,  3  Wash.  328.    They  should  ^  Equity  Rule  69. 

be   at   least   substantially  answered  :  "  Ingle  v.  Jones,  9  Wall.  486. 


CIRCUIT   COURTS — SUITS   IN    EQUITY.  215 

the  court,  stating  that  any  of  the  plaintiff's  witnesses  are  aged  and 
infirm,  or  going  out  of  the  country,  or  that  any  one  of  them  is  a 
single  witness  to  a  material  fact,  the  clerk  is  required  to  issue,  as 
a  matter  of  course,  a  commission  to  such  commissioner  or  commis- 
sioners as  a  judge  of  the  court  may  direct,  to  take  the  examination 
of  such  witness  or  witnesses  de  bene  esse,  upon  due  notice  to  the 
adverse  party  of  the  time  and  place  of  taking  his  or  their  testimony. 

The  last  interrogatory  must  be  in  substance  as  follows :  "Do  you 
know,  or  can  you  set  forth,  any  other  matter  or  thing  which  may 
be  a  benefit  or  advantage  to  the  parties  at  issue  in  this  cause,  or 
either  of  them,  or  that  may  be  material  to  the  subject  of  this  your 
examination,  or  the  matters  in  question  in  this  cause  ?  If  yea,  set 
forth  the  same  fully  and  at  large  in  your  answer."  ^ 

§  265.  Defendant  must  ans"wer  the  original  bill  before  the  plaintiff 
is  required  to  answer  the  cross-bill. — If  a  defendant  in  equity  files  a 
cross-bill  for  discovery  only  against  the  plaintiff  in  the  original 
bill,  he  must  answer  the  original  bill  before  the  plaintiff  is  required 
to  answer  the  cross-bill.^  The  answer  in  such  a  case  to  the  cross- 
bill may  be. used  at  the  hearing  by  the  party  filing  the  same  in  the 
same  manner  and  under  the  same  restrictions  as  an  answer  to  an 
original  bill  may  be  read  and  used.  A  cross-bill  depends  upon  the 
original  one,  and  may  be  said  to  be  a  mere  auxiliary  suit.  If  its 
purposes  are  entirely  different  from  those  of  the  original  bill,  it 
cannot  properly  be  considered  a  cross-bill,  although  the  matters 
therein  may  have  some  relation  to  the  same  general  subject.  Nor 
can  new  parties  be  brought  into  a  cause  by  a  cross-bill.^ 

If  a  bill  is  filed  to  set  aside  an  agreement  or  conveyance,  and 
the  defendant  desires  to  have  it  established  by  a  decree  of  the 
court,  he  may  do  so  by  filing  a  cross-bill  for  that  purpose.^  But  a 
cross-bill  cannot  be  properly  filed  without  leave  of  court,  and  if  so 
filed  it  will  be  set  aside  or  dismissed.^ 

§  266.  Appointment  of  masters  and  their  compensation. — The 
circuit  courts  have  power  to  appoint  standing  masters  in  chancery 
in  their  respective  districts,  both  the  judges   concurring  therein, 

^Equity   Rules   70,   71.     See    also  ^  Shields  v.  Barrow,  17  How.  130; 

Richardson  v.  Golden,  3  Wash.  (C.  C.)  Cross  v.  De  Valle,  1  Wall.  1. 

109;    Dodge   V.    Israel,    4   Id.    323;  *  Carnocan  u.  Christie,  11  Wh.  64r). 

Rhoades  v.  Selin,  Id.  715.  ^  Bronson  v.  La  Crosse  &  M.  R.  Co., 

■'  Equity  Rule  72  ;  Allen  v.  Allen,  2  Wall.  283. 
Hemp.  58 ;  Young  v.  Pott,  4  Wash.  521. 


216  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

and  they  may  appoint  a  master  pro  hac  vice,  in  any  particular 
case.  But  no  clerk  of  the  district  or  circuit  court  or  his  deputy 
can  be  appointed  either  as  receiver  or  master  in  any  case,  except 
where  the  judge  shalTdetermine  that  special  reasons  exist  therefor, 
to  be  assigned  in  the  order  of  appointment.  The  compensation 
to  be  allowed  the  master  is  to  be  fixed  by  the  court  in  each 
particular  case,  and  such  compensation  must  be  charged  upon  and 
borne  by  such  of  the  parties  in  the  cause  as  the  court  shall  direct. 
He  cannot,  however,  retain  the  report  as  security  for  his  compen- 
sation, but  where  it  is  allowed  he  is  entitled  to  an  attachment 
against  the  party  who  is  ordered  to  pay  the  same,  if  upon  notice 
thereof  he  does  not  pay  it  within  the  time  prescribed  by  the  court. ^ 

§  267.  Reference  and  proceedings  before  masters. — It  is  not  the 
practice  in  all  cases  for  courts  of  equity  to  refer  causes  to  a  jury  or 
master,  to  ascertain  the  facts,  but  they  may  do  so  themselves,  or 
refer  them  to  a  jury  or  a  master. 

If,  however,  the  bill  calls  for  an  account,  and  this  is  complex  and 
intricate,  it  should  be  referred  to  a  commissioner  or  master,  to  be 
examined  and  reported  by  him.  This  reference  can  only  be  made 
after  an  interlocutory  decree,  on  the  general  merits  of  the  plaintiff's 
bill.  The  master  may  take  evidence  upon  written  interrogatories, 
or  viva  voee,  the  parties  to  the  suit  being  present  personally  or  by 
counsel,  or  having  due  notice  thereof,  and  an  opportunity  to  appear 
before  him.^ 

Exceptions  to  the  report  of  a  master  may  be  taken  by  either 
party.  The  errors  should  be  specifically  pointed  out,  as  the  parts 
not  excepted  to  will  be  considered  as  correct  and  admitted.^ 

It  is  the  duty  of  the  master,  upon  every  reference  to  him,  within 
a  reasonable  time  to  assign  a  time  and  place  for  proceedings  on  the 
same,  and  to  give  due  notice  thereof  to  each  of  the  parties  or  their 
solicitors ;  and  if  either  party  fails  to  appear  at  the  time  and  place 
appointed,  he  may  proceed  ex  parte,  or  in  his  discretion  adjourn 
the  examination  and  proceedings  to  a  future  day,  giving  the  absent 
party  or  his  solicitor  due  notice  thereof.  It  is  the  duty  of  the  mas- 
ter to  proceed  with  all  reasonable  diligence  in  every  reference  to 

^  Equity  Rule  82  ;  act  of  Congress,  be  referred  to  a  master  :  Pendleton  v. 

1S79,  ch."l83,  p.  415.  Evans'    Ex'r,  4  Wash.  391;    Equity 

'^  Field  V.  Holland,  6  Cr.  8;    Story  Rule  77. 

V.  Livingston,  13   Pet.  359.      If    the  "  Dubourg  v.  United  States,  7  Pet. 

Itill  for  the  balance  of  an  account  is  G'^d. 
taken  pro  confesso,  the  account  must 


CIRCUIT   COURTS — SUITS   IN    EQUITY.  217 

him,  and  with  the  least  practicable  delay;  and  either  party  may 
apply  to  the  court,  or  a  judge  thereof,  for  an  order  to  the  master  to 
speed  the  proceedings,  and  to  make  his  report,  and  to  certify  to 
the  court  or  judge  the  reasons  for  any  delay.^  It  is  the  duty  of  the 
party  procuring  a  reference  to  cause  the  same  to  be  presented  to 
the  master  for  a  hearing  on  or  before  the  next  rule  day  succeeding 
the  time  when  the  reference  is  made ;  and  if  he  fail  to  do  so,  the 
adverse  party  is  at  liberty  forthwith  to  cause  proceedings  to  be  had 
before  the  master  at  the  costs  of  the  other  party.^  The  report  should 
not  contain  any  state  of  facts,  charge,  affidavit,  deposition,  examina- 
tion or  answer,  or  any  part  thereof,  brought  in  or  used  before  the 
master,  but  they  should  be  referred  to  and  identified  so  as  to  enable 
the  court  to  determine  what  was  brought  in  or  used.^  The  court 
will  not  investigate  the  items  of  an  account,  nor  review  the  whole 
testimony  taken  before  a  master.*  Exceptions  should  be  filed  point- 
ing out  the  particular  portion  of  the  testimony  on  which  the  party 
excepting  relies. 

For  forms  in  such  cases,  see  post,  Nos.  56,  57,  78. 

§  268.  Hearing  before  a  master;  evidence. — The  master  has  full 
authority  to  examine  the  parties  in  a  cause  upon  oath  touching  all 
matters  contained  in  the  reference;  and  he  has  authority  to  require 
the  production  of  all  books,  papers,  writings,  vouchers  and  other 
documents  relating  thereto.  He  may  also  examine  on  oath,  viva 
voce,  all  witnesses  produced  by  the  parties  before  him,  and  order 
the  examination  of  other  witnesses  to  be  taken,  under  a  commission 
issued  upon  his  certificate,  from  the  clerk's  office,  or  otherwise  as 
provided  by  acts  of  Congress  or  by  the  rules  in  equity ;  and  may 
direct  the  mode  in  which  the  matters  requiring  evidence  shall  be 
proved  before  him,  and  do  all  other  acts,  and  direct  all  other  in- 
quiries and  proceedings  in  the  matters  before  him,  which  he  may 
deem  necessary  and  proper  to  the  justice  and  merits  of  the  case 
and  the  rights  of  the  parties.* 

§  269.  How  witnesses  are  procured. — Witnesses  who  live  within 
the  district  may,  upon  due  notice  to  the  opposite  party,  be  sum- 
moned to  appear  before  a  commissioner  appointed  to  take  testi- 
mony, or  before  a  master  or  examiner  appointed  in  any  cause,  by 
a  subpoena  in  the  usual  form,  which  may  be  issued  by  the  clerk  of 

'  Equity  Rule  75.  5  Equity    Rule    77  ;     Harding     v. 

2  Equity  Rule  74.  Handy,   11  Wh.  103;    Story  v.  Liv- 

3  Equity  Rule  76.  ingston,  13  Pet.  359. 

arding  v.  Handy,  11  Wh.  103. 


218  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

the  court,  in  blank,  and  filled  up  by  the  party  praying  for  the  same, 
or  the  commissioner,  master  or  examiner,  requiring  the  attendance 
of  the  witness  at  the  J;irae  and  place  specified ;  and  he  is  allowed 
for  his  attendance  the  same  fees  as  for  attendance  in  court.  If  he 
refuses  to  appear  after  due  service  of  the  subpoena,  he  is  guilty  of  a 
contempt  of  court,  which  being  certified  to  the  clerk's  office  by  the 
commissioner,  master  or  examiner,  an  attachment  may  issue  for  a 
contempt  on  the  order  of  the  court  or  a  judge  thereof,  in  the  same 
manner  as  for  failure  to  attend,  or  for  refusing  to  testify  in  court.^ 
When  a  witness  has  been  once  examined,  and  his  deposition  used  on 
the  hearing,  he  cannot  be  re-examined  before  the  master  without  a 
special  order  of  the  court ;  and  if  leave  is  thus  granted,  he  can, 
usually,  only  be  examined  in  respect  to  facts  not  before  testified  to 
by  him,  and  not  then  in  issue.^  But  the  court  may  in  its  dis- 
cretion, if  it  is  deemed  advisable,  allow  the  examination  of  wit- 
nesses viva  voce,  in  any  case,  in  open  court. ^ 

§  270.  How  accounts  must  be  brought  in ;  examination  of  party. 
— All  parties  accounting  before  a  master  must  bring  in  their  re- 
spective accounts  in  the  form  of  debtor  and  creditor,  and  any  of 
the  other  parties  not  satisfied  therewith  may  examine  the  account- 
ing party  viva  voce,  or  upon  interrogatories  in  the  master's  office, 
or  by  deposition,  as  the  master  may  direct.*  And  all  affidavits, 
depositions  and  documents  which  have  been  previously  made,  read  or 
used  in  the  court  upon  any  proceeding  in  any  cause  or  matter  may 
be  used  before  the  master.  So  the  master  may  examine  any  cred- 
itor or  other  person  coming  in  to  claim  before  him,  either  upon  writ- 
ten interrogatories  or  viva  voce,  or  in  both  modes,  and  the  testimony 
must  be  taken  down,  if  either  party  requires  it,  for  use  in  court.^ 

§  271.  Exceptions  to  the  report  of  a  master;  when  filed. — Excep- 
tions may  be  taken  to  the  rulings  of  a  master  in  chancery,  but  they 
should  be  taken  at  the  time  and  entered  in  his  minutes.^  When 
the  master's  report  is  completed  it  is  his  duty  to  return  the  same 
into  the  clerk's  office,  and  of  the  clerk  to  make  an  entry  of  the  day 
of  the  return  in  the  order-book.  After  that  is  done  the  parties  have 
one  month  in  which  to  file  exceptions  to  the  same.  If  no  excep- 
tions are  filed  by  either  party  within  that  time,  the  report  will  stand 

1  Equity  Rule  78.  '  Equity  Rule  80. 

2  Gass  V.  Stinson,  2  Sum.  605  ;  .Jen-  *  Troy  Iron  and  Nail  Factory  v.  Cor- 
kins  V.  Eldridge,  3  Story  299.  nincr,  6  Blatch.  328  ;  Oliver  v.  Piatt, 

3  Equity  Rule  78.  3  How.  333  ;  Harding  v.  Handy,  1 1 1 
*  Equity  Rule  79.                                   Wh.  103. 


CIRCUIT   COURTS — SUITS    IN    EQUITY.  219 

confirmed  on  the  next  rule  day  after  the  month  is  expired.  But  if 
they  are  filed,  they  will  stand  for  a  hearing  before  the  court  if  then 
in  session  :  if  not  in  session,  then  at  the  next  sitting  which  shall  be 
held  thereafter.^  In  making  exceptions  a  general  assignment  of 
errors  is  insufiScient,  but  they  should  state  article  by  article  the 
parts  of  the  report  to  which  exception  is  taken.^ 

An  exception  to  a  master's  report  is  not  in  the  nature  of  a  special 
demurrer,  nor  is  it  required  to  be  so  full  and  specific ;  but  it  should 
distinctly  point  out  the  finding  and  conclusions  of  the  master  which 
it  -seeks  to  set  aside.^  If  a  master  or  referee  has  followed  the  order 
and  judgment  of  the  court  on  the  reference,  no  objection  can  be 
taken  on  appeal  from  the  final  judgment  of  the  court  on  account  of 
error  in  the  original  or  interlocutory  judgment  by  which  the  refer- 
ence was  made  and  the  specific  directions  given.^ 

Costs  on  exceptions  are  regulated  by  rule  as  follows :  the  party 
whose  exceptions  are* overruled  must,  for  the  overruled  exceptions, 
pay  costs  to  the  other  party,  and  for  those  sustained  or  allowed 
he  is  entitled  to  costs,  the  costs  in  each  case  to  be  fixed  by  the  court, 
by  a  standing  rule  of  the  circuit  court.'' 

§  272.  Decrees;  clerical  mistakes  may  be  corrected;  what  decrees 
should  contain. — It  is  provided  by  rule  that  any  clerical  mistakes 
in  decrees  or  decretal  orders,  or  errors  arising  from  any  accidental 
slip  or  omission,  may,  at  any  time  before  the  enrollment  thereof, 
be  corrected  by  order  of  the  court  or  a  judge  thereof  upon  petition, 
without  the  form  or  expense  of  a  rehearing.^ 

The  practice  in  England  is  to  recite  in  the  decree  the  substance 
of  the  bill  and  answer  and  other  pleadings,  and  the  facts  on  which 
the  court  founds  its  decree.  But  in  this  country  the  pleadings  arid 
decree  are  a  part  of  the  record ;  and  by  a  rule  of  court  in  equity, 
neither  the  bill,  answer  nor  other  pleadings  should  be  recited  or 
stated  in  the  decree  or  order. *"  They  should  begin  as  follows: 
"This  cause  came  on  to  be  heard  (or  to  be  further  heard  as  the  case 
may  be)  at  this  term,  and  was  argued  by  counsel ;  and  thereupon, 
upon  consideration  thereof,  it  was  ordered,  adjudged  and  decreed  as 
follows,  viz. :" 

1  Equity  Rule  83.  *  N.  Orleans  v.  Gaines,  15  Wall.  624. 

2  Dexter   v.   Arnold,   2  Sum.    108;         ^  7  Equity  Rule  84. 
Story   V.    Livingston,     13    Pet.    359;         ®  6  Equity  Rule  85. 

Green  v.  Bishop,  1  Cliff.  186.  ^  Whitinji  v.  Bank  of  U.  S.,  13  Pet. 

^  Foster  v.  Goddard,  1  Black  506.        6  ;  Equity  Rule  86. 


220  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

[Here  insert  the  decree  or  order.] 

For  forms  of  decrees,  see  joos<("  Forms  in  Equity"),  No.  87,  et  seq. 

§  273.  Guardians  and  prochein  amis,  appointment  of. — The  law 
supposes  infants  to  be  incapable  of  understanding  and  managing 
their  affairs,  and  the  duty  of  watching  their  interests  devolves  to  a 
considerable  extent  upon  courts  both  of  law  and  equity.  They 
defend  by  guardian,  who  is  usually  the  nearest  relation  not  inter- 
ested in  the  matter  in  question  or  controversy.^  It  is  provided  by 
a  rule  in  equity  as  follows  :  "  Guardians  ad  litem  to  defend  a  suit 
may  be  appointed  by  the  court,  or  any  judge  thereof,  for  infants  or 
other  persons  who  are  under  guardianship  or  otherwise  incapable  to 
sue  for  themselves.  All  infants  and  other  persons  so  incapable 
may  sue  by  their  guardians,  if  any,  or  by  their  prochein  ami,  sub- 
ject, however,  to  such  orders  as  the  court  may  direct  for  the  pi*o- 
tection  of  infants  and  other  persons."^ 

§  274.  Rehearing ;  what  the  petition  for  should  contain. — A  re- 
hearing is  only  allowed  where  some  plain  omission  or  mistake  has 
been  made,  or  where  somethincz;  material  to  the  decree  has  been 
brought  to  the  notice  of  the  court,  which  had  been  overlooked.^ 
The  rule  in  equity  on  this  subject  provides :  "  Every  petition  for  a 
rehearing  shall  contain  special  matter  or  cause  on  which  such  re- 
hearing is  applied  for,  shall  be  signed  by  counsel,  and  the  facts 
therein  stated,  if  not  apparent  on  the  record,  and  shall  be  verified 
by  the  oath  of  the  party  or  some  other  person.  No  rehearing  shall 
be  granted  after  the  term  at  which  the  final  decree  of  the  court 
shall  have  been  entered  and  recorded,  if  an  appeal  lies  to  the 
Supreme  Court.  But  if  no  appeal  lies  the  petition  may  be  ad- 
mitted at  any  time  before  the  end  of  the  next  term  of  the  court,  in 
the  discretion  of  the  court."*  The  petition  must  usually  state 
some  reason  for  the  rehearing  which  would  be  good  ground  for  a 
new  trial  at  common  law.^  If  the  ground  for  the  rehearing  is 
newly-discovered  evidence,  it  should  appear  that  it  was  unknown 
at  the  trial  and  could  not  with  due  diligence  have  been  discovered.® 
But  a  new  trial  will  not  be  granted  on  the  mere  certificate  of 
counsel  that  there  is  sufiicient  cause  for  it.^ 

1  Bank  of  U.  S.  v.  Ritchie,  8  Pet.  '"  Hunter  v.  Marlboro',  2  Woodb.  & 
128.  M.  168. 

2  Equity  Rule  87.  '  Bentley  v.  Phelps,  3  Wood.&  M.403. 

3  Jenkins  v.  Eldridge,  3  Story  299.         '  Emerson  v.  Davis,  1  Woodb.  &  M. 
*  Equity  Rule  88.  21  ;  Tufts  v.  Tufts,  3  Id.  426. 


CIRCUIT    COURTS — SUITS    IN    EQUITY.  221 

§  275.  Rules  may  be  made  by  the  circuit  courts. — We  have  ob- 
served that  the  Supreme  Court  has,  by  virtue  of  the  statute  con- 
ferring that  power,  prescribed  certain  rules  for  the  circuit  courts, 
both  at  law  and  in  equity ;  and  that  court  has,  by  rule,  conferred 
authority  upon  the  circuit  courts  to  make  other  and  further  rules 
and  regulations  for  the  practice,  proceedings  and  process,  mesne  and 
final,  in  their  respective  districts,  not  inconsistent  with  the  rules  pre- 
scribed by  the  Supreme  Court,  provided  both  judges  concur  therein. 
They  may  also  alter  and  amend  such  rules. ^  The  power  thus  con- 
ferred gives  the  circuit  courts  the  right  to  prescribe  the  time  and 
manner  of  appearing  and  answering,  the  mode  of  conducting  trials,  the 
order  of  introducing  evidence  and  the  times  when  it  must  be  intro- 
duced ;  but  these  rules  may  be  waived  or  modified  by  the  circuit 
court  so  as  to  prevent  them  from  working  injustice,  and  they  must 
not  be  inconsistent  with  the  general  rules  of  practice  prescribed  by 
the  Supreme  Court.^ 

§  276.  Decrees  in  cases  of  foreclosure. — It  is  further  provided  by 
a  general  rule  of  the  Supreme  Court  that  in  suits  in  equity  for  the 
foreclosure  of  mortgages  in  the  circuit  courts,  or  in  any  court  of 
the  territories  having  jurisdiction  of  the  same,  a  decree  may  be 
rendered  for  any  balance  that  may  be  found  due  the  complainant 
over  and  above  the  proceeds  of  the  sale  or  sales,  and  that  execution 
may  issue  for  the  collection  of  the  same,  in  the  same  manner  as 
where  the  decree  is  solely  for  the  payment  of  money .^ 

^  Equity  Rule  89.  v.  White,  8  Id.  262 ;    Russell  v.  Mc- 

'  Poultney  v.  La  Fayette,    12  Pet.  Lellan,  3  Woodb.  &  M.  157. 

472  ;  Philadelphia  and  Trenton  R.  Co.         ^  Equity  Rule  92. 

V.  Stimpson,  14  Id.  448  ;  Bank  of  U.  S. 


CHAPTER  XL 

SUPREME    JOURT — ORGANIZATION    AND    SESSIONS. 

§  277.  Provisions  for  the  organization  of  the  Supreme  Court. — 
The  provisions  of  the  Revised  Statutes  relating  to  the  organization 
of  the  Supreme  Court  are  as  follows  : 

Constitution  of. — Sec.  673.  The  Supreme  Court  of  the  United 
States  shall  consist  of  a  Chief  Justice  of  the  United  States  and  eight 
associate  justices,  any  six  of  whom  shall  constitute  a  quorum. 

Precedence  of  justices. — See.  674.  The  associate  justices 
shall  have  precedence  according  to  the  dates  of  their  commissions, 
or  when  the  commissions  of  two  or  more  of  them  bear  the  same 
date,  according  to  their  ages. 

Vacancy  in  the  office  of  Chief  Justice. — Sec.  675.  In  case 
of  a  vacancy  in  the  office  of  Chief  Justice,  or  of  his  inability  to 
perform  the  duties  and  powers  of  his  office,  they  shall  devolve  upon 
the  associate  justice  who  is  first  in  precedence,  until  such  disability 
is  removed,  or  another  Chief  Justice  is  appointed  and  duly  quali- 
fied. This  provision  shall  apply  to  every  associate  justice  who 
succeeds  to  the  office  of  Chief  Justice. 

Salary  of  Judges. — Sec.  676.  The  Chief  Justice  of  the  Supreme 
Court  of  the  United  States  shall  receive  the  sum  of  ten  thousand 
five  hundred  dollars  a  year,  and  the  justices  thereof  shall  receive 
the  sum  of  ten  thousand  dollars  a  year  each,  to  be  paid  monthly. 

Appointment  of  clerk,  marshal  and  reporter. — Sec.  677. 
The  Supreme  Court  shall  have  power  to  appoint  a  clerk  and  a 
marshal  of  said  court,  and  a  reporter  of  its  decisions. 

Appointment  of  deputy  clerk. — Sec.  678.  One  or  more  depu- 
ties of  the  clerk  of  the  Supreme  Court  may  be  appointed  by  the 
court  on  the  application  of  the  clerk,  and  he  may  be  removed  at 
the  pleasure  of  the  court.  In  case  of  the  death  of  the  clerk  his 
deputy  or  deputies  shall,  unless  removed,  continue  in  office  and  per- 
form the  duties  of  the  clerk  in  his  name  until  a  clerk  is  appointed  and 
qualified ;  and  for  the  defaults  and  misfeasances  in  office  of  any 
such  deputy,  whether  in  the  lifetime  of  the  clerk  or  after  his  death, 
the  clerk,  and  his  estate,  and  the  sureties  on  his  official  bond,  shall 


SUPREME  COURT — ORGANIZATION.  223 

be  liable ;  and  his  executor  or  administrator  shall  have  such  rem- 
edy for  any  such  default  or  misfeasances  committed  after  his  death 
as  the  clerk  would  be  entitled  to  if  the  same  had  occurred  in  his 
lifetime. 

Records  of  the  court  of  appeals. — Sec.  679.  The  records 
and  proceedings  of  the  court  of  appeals,  appointed  previous  to  the 
adoption  of  the  present  Constitution,  shall  be  kept  in  the  office  of 
the  clerk  of  the  Supreme  Court,  who  shall  give  copies  thereof  to  any 
person  requiring  and  paying  for  them  in  the  manner  provided  by 
law  for  giving  copies  of  the  records  and  proceedings  of  the  Supreme 
Court,  and  such  copies  shall  have  like  faith  and  credit  with  all 
other  proceedings  of  said  court. 

Marshals  and  duty. — >S'gc.-680.  The  marshal  is  entitled  to 
receive  a  salary  at  the  rate  of  three  thousand  five  hundred  dollars 
a  year.  He  shall  attend  the  court  at  its  sessions ;  shall  serve  and 
execute  all  process  and  orders  issuing  from  it,  or  made  by  the 
Chief  Justice  or  an  associate  justice  in  pursuance  of  law ;  and 
shall  take  charge  of  all  property  of  the  United  States  used  by  the 
court  or  its  members.  With  the  approval  of  the  Chief  Justice  he 
may  appoint  assistants  and  messengers  to  attend  the  court,  with  the 
compensation  allowed  to  officers  of  the  House  of  Representatives  of 
similar  grade. 

Duty  of  the  reporter. — Sec.  681.  The  reporter  shall  cause 
the  decisions  of  the  Supreme  Court  made  during  his  office  to  be 
printed  and  published  within  eight  months  after  they  are  made; 
and  within  the  same  time  shall  deliver  three  hundred  copies  of  the 
volumes  of  said  reports  to  the  Secretary  of  the  Interior.  And  he 
shall,  in  any  year  when  he  is  so  directed  by  the  court,  cause  to  be 
printed  and  published  a  second  volume  of  said  decisions,  of  which 
he  shall  deliver  in  like  manner  and  time  three  hundred  copies. 

Salary  of  reporter  and  price  of  reports.— aS'^c.  682.  The 
reporter  shall  be  entitled  to  receive  from  the  treasury  an  annual 
salary  of  twenty-five  hundred  dollars  when  his  report  of  said  de- 
cisions constitutes  one  volume,  and  an  additional  sum  of  fifteen 
hundred  dollars  when,  by  the  direction  of  the  court,  he  causes  to  be 
printed  and  published  in  any  year  a  second  volume.  But  said 
salary  and  compensation,  respectively,  shall  be  paid  only  when  he 
causes  such  decisions  to  be  printed, 'published  and  delivered  within 
the  time  and  in  the  mannei*  prescribed  by  law,  and  upon  the  con- 


224  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

dition  that  the  volumes  of  said  reports  shall  be  sold  by  him  to  the 
public  for  a  price  not  exceeding  fivQ  dollars  a  volume. 

Section  683  provides  for  the  disposition  of  the  copies  of  said 
reports  delivered  to  the  Secretary  of  the  Interior. 

Without  the  means  thus  provided  by  Congress,  the  Supreme 
Court  could  not  have  been  properly  constituted  or  organized.  For 
to  constitute  a  court  in  the  sense  used  in  the  Constitution,  there 
should  not  only  be  a  judge  or  judges  to  hear  and  determine 
causes,  but  clerks  to  record  and  attest  its  acts  and  decisions,  and 
ministerial  officers  to  execute  its  commands  and  judgments  and 
secure  due  order  in  its  proceedings.  Judicial  power  signifies  the 
power  with  which  courts  are  clothed,  and  this  embraces  not  only 
the  power  to  try  and  determine,  but  to  execute  its  orders  and 
judgments. 

Under  these  provisions  the  Supreme  Court  was  duly  constituted, 
and  it  may  take  original  cognizance  of  the  cases  specified  in  the 
Constitution.  But  we  will  consider  its  jurisdiction  more  particu- 
larly in  a  subsequent  chapter.' 

§  278.  Tenure  of  office  of  the  judges. — Having  set  out  the  stat- 
utes providing  for  the  organization  of  the  Supreme  Court,  and 
shown  the  mode  of  appointment  of  the  judges,  it  may  be  well  to 
consider  briefly  the  tenure  by  which  the  judges  hold  their  offices. 

We  have  noticed  that  the  Constitution  provides  that  "the  judges 
of  both  the  Supreme  Court  and  inferior  courts  shall  hold  their 
offices  during  good  behavior." 

The  question  as  to  the  policy  and  wisdom  of  a  permanent  tenure 
of  office  of  judges  received  much  attention  at  the  time  of  the  for- 
mation of  the  Constitution,  and  it  has  been  the  subject  of  discus- 
sion ever  since  that  time.  Many  of  the  state  constitutions  have 
made  these  offices  elective,  and  for  a  short  term ;  and  it  can  hardly 
be  affirmed,  in  the  light  of  experience  under  this  mode  of  securing 
judicial  officers,  that  the  judges  of  the  state  courts  have  not  gene- 
rally maintained  a  character  for  ability  and  integrity  equal  to  that 
secured  by  appointment  and  a  holding  for  life  or  during  good 
behavior.  Notwithstanding  many  objections  urged  by  speculative 
theorists  and  political  philosophers,  it  is  believed  that  judges  select- 
ed by  popular  election  and  for  sh(?rt  terms  have  generally  given 
satisfaction  ;    and  there  is  certainly  one  advantage  enjoyed  by  this 

^  See^os^,  ch.  xii. 


SUPREME  COURT — ORGANIZATION.  225 

mode  of  selecting  judges  as  well  as  other  oflBcers,  and  that  is  that 
if  they  prove  incompetent  or  un«worthy,  there  is  an  opportunity  for 
removal  without  much  delay.  But  owing  to  the  complicated  char- 
acter of  our  national  government,  and  considering  that  the  judic- 
iary department  is  a  co-ordinate  and  independent  one,  there  are 
some  important  reasons  why  the  judges  should  be  appointed  in  the 
manner  provided  by  the  Constitution,  and  that  the  tenure  of  the 
office  should  continue  during  good  behavior.  This  question  was 
much  discussed  before  the  adoption  of  the  Constitution.  A  contem- 
poraneous writer  of  rare  ability  said:  "The  standard  of  good  be- 
havior for  the  continuance  in  office  of  the  judicial  magistracy  is  cer- 
tainly one  of  the  most  valuable  of  the  modern  improvements  in  the 
practice  of  government.  In  a  monarchy,  it  is  an  excellent  barrier 
to  the  despotism  of  the  prince ;  in  a  republic,  it  is  a  no  less  excel- 
lent barrier  to  the  encroachments  and  oppressions  of  the  represent- 
ative body.  And  it  is  the  best  expedient  which  can  be  devised  in 
any  government  to  secure  a  steady,  upright  and  impartial  adminis- 
tration of  the  laws.  Whoever  attentively  considers  the  different 
departments  of  power  must  perceive  that,  in  a  government  in  which 
they  are  separated  from  each  other,  the  judiciary,  from  the  nature 
of  its  functions,  will  always  be  the  least  dangerous  to  the  political 
rights  of  the  Constitution,  because  it  will  be  least  in  a  capacity 
to  annoy  or  injure  them.  The  executive  not  only  dispenses  the 
honors,  but  holds  the  sword  of  the  community.  The  legislature 
not  only  commands  the  purse,  but  prescribes  the  rules  by  which  the 
duties  and  rights  of  every  citizen  are  to  be  regulated.  The  judici- 
ary, on  the  contrary,  has  no  influence  over  either  the  sword  or  the 
purse;  no  direction  either  of  the  strength  or  the  wealth  of  society; 
and  can  take  no  active  resolution  whatever.  It  may  be  truly  said 
to  have  neither  force  nor  will,  but  merely  judgment;  and  must  ulti- 
mately depend  upon  the  aid  of  the  executive  arm  for  the  efficacious 
exercise  even  of  this  faculty.  .  .  .  Upon  the  whole,  there  can  be 
no  doubt  that  the  convention  acted  wisely  in  copying  from  the 
models  of  those  constitutions  which  have  established  good  behavior 
as  the  tenure  of  judicial  offices  in  point  of  duration  ;  and  that,  so 
far  from  being  blamable  on  this  account,  their  plan  would  have  been 
inexcusably  defective  if  it  had  wanted  this  important  feature  of  good 
government."^ 

1  The  Federalist,  No.  78. 
15 


226  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

§  279.  Terms  of  the  Supreme  Court. — The  provisions  of  the 
Statute  relating  to  the  terms  of  th§  Supreme  Court  require  that  it 
shall  hold  one  term  annually  at  the  seat  of  government,  commencing 
on  the  second  Monday  of  October,  and  such  adjourned  or  special 
terms  as  it  may  find  necessary  for  the  despatch  of  business ;  and 
that  "  suits,  proceedings,  recognizances  and  processes  pending  in 
or  returnable  to  said  court  shall  be  tried,  heard  and  proceeded  with 
as  if  the  time  of  holding  said  session  had  not  been"  altered;  that 
if  at  any  session  of  the  court  a  quorum  does  not  attend  on  the  day 
appointed  for  holding  it,  the  justices  who  do  attend  may  adjourn  it 
from  day  to  day  for  twenty  days  after  the  appointed  time,  unless 
before  that  time  a  quorum  shall  attend ;  that  if  a  quorum  does  not 
attend  within  that  time,  the  business  of  the  court  shall  be  continued 
over  till  the  next  appointed  session ;  and  that  if,  during  a  term, 
after  a  quorum  has  assembled,  less  than  a  quorum  attend  on  any 
day,  the  justices  attending  may  adjourn  the  court  from  day  to  day 
until  there  is  a  quorum,  or  may  adjourn  without  day. 

They  further  provide  that  the  justices  attending  at  any  term  when 
less  than  a  quorum  is  present  may,  within  the  twenty  days  men- 
tioned, "  make  all  necessary  orders  touching  any  suit,  proceeding 
or  process  depending  in  or  returned  to  the  court  preparatory  to  the 
hearing,  trial  and  decision  thereof."^ 

1  See  Rev.  Stat,  gg  684,  685,  686. 


CHAPTER   XII. 

ORIGINAL    JURISDICTION — AT    LAW   AND    IN    EQUITY. 

§  280.  Rules  of  practice. — Having  treated  of  the  constitution 
and  organization  of  the  Supreme  Court,  we  will  now  proceed  to 
consider  its  original  jurisdiction,  and  the  pleadings,  practice  and  pro- 
cedure therein.  It  may  be  observed  that  there  are  no  statutes  or 
general  rules  of  the  court  that  specifically  point  out  the  practice 
or  mode  of  procedure  in  the  Supreme  Court,  as  a  court  of  original 
jurisdiction,  or  that  prescribe  the  forms  of  pleadings  therein.  But 
a  general  statutory  provision  requires  that  "  all  writs  and  process 
issuing  from  the  courts  of  the  United  States  shall  be  under  the 
seal  of  the  court  from  which  they  issue,  and  shall  be  signed  by  the 
clerk  thereof;"  that  "those  issuing  from  the  Supreme  Court  or 
a  circuit  court  shall  bear  the  teste  of  the  Chief  Justice  of  the 
United  States,  or  when  that  office  is  vacant,  of  the  associate  justice 
next  in  precedence;"  ^  and  that  "all  process  issued  from  the  courts 
of  the  United  States  shall  bear  teste  from  the  day  of  such  issue."  ^ 

It  is  further  declared  by  a  general  rule  of  the  court  that  "  this 
court  consider  the  practice  of  the  courts  of  the  King's  Bench  and 
of  Chancery  in  England  as  affording  outlines  for  the  practice  of 
this  court ;  and  they  will,  from  time  to  time,  make  such  alterations 
therein  as  circumstances  may  render  necessary."^  The  practice  of 
chancery  referred  to  is  the  practice  of  the  High  Court  of  Chancery 
of  England.  This  practice  would  undoubtedly  regulate  the  procedure 
in  the  federal  courts  so  far  as  it  would  be  applicable,  not  in  all  cases 
as  positive  rules,  but  as  furnishing  just  analogies  relating  to  the  prac- 
tice in  the  absence  of  rules  of  court  or  statutes  prescribing  the  prac- 
tice, and  in  cases  where  the  rules  of  the  English  High  Court  of  Chan- 
cery would  not  be  strictly  applicable.*    The  rules  of  this  court  further 

^  Rev.  Stat.  §  911.     A  summons  or  the  Supreme  Court,  is  void:  Wells  v. 

notice  must  be  under  the  seal  of  the  McGregor,  13  Wall.  188. 

court  and  signed  by  the  clerk :  Peas-  ^  Gen.  Rule  3. 

lee   V.    Haberatro,     15    Blatch.    472;  *  Equity  Rule  90 ;    Boyle  r.  Zache- 

Dwight  V.  Merritt,  4  Fed.  Rep.  614.  rie,  6  Pet.  648  ;  Poultney  v.  La  Fay- 

*  Rev.  Stat.- §  912.     A  writ  of  error  ette,    12  Pet.   472;  Rhode    Islands, 

bearing  the  teste  of  the  clerk  only,  Massachusetts,  14  Pet.  210 ;  Florida 

and  not  that  of  the  Chief  Justice  of  v.  Georgia,  17  How.  478. 


228  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

provide  that  all  process  of  the  court  shall  be  in  the  name  of  the 
President  of  the  United  States ;  that  all  process  in  common  law  or 
in  equity  issued  against  a  state  shall  be  served  on  the  governor  or 
chief  magistrate  and  attorney-general  of  such  state ;  that  the  pro- 
cess of  subpoena  issuing  out  of  this  court  in  any  suit  in  equity 
must  be  served  on  the  defendant  sixty  days  before  the  return  day 
of  such  process ;  that  if,  after  due  service  of  the  same,  the  defend- 
ant does  not  appear  at  the  return  day  contained  therein,  the  plain- 
tiff is  at  liberty  to  proceed  ex  parte  ;  and  that  all  motions  must 
be  in  writing.^ 

For  some  time  after  the  adoption  of  the  Constitution  and  the 
organization  of  this  court,  it  was  a  question  much  discussed 
whether,  without  an  act  of  Congress  regulating  the  practice  and 
mode  of  procedure,  this  court  could  exercise  any  original  jurisdiction 
in  cases  where  the  forms  and  modes  of  procedure  of  the  English 
High  Court  of  Chancery  were  not  applicable.  This  question  was 
first  presented  to  the  court  in  the  case  of  Florida  v.  Georgia.^  In 
this  case  the  state  of  Florida  filed  a  bill  in  this  court  against  the 
state  of  Georgia,  to  establish  a  boundary  between  them,  thereby 
invoking  the  aid  of  the  original  jurisdiction  of  the  court.  The 
Attorney-General  filed  a  motion  therein  for  leave  to  appear  and 
plead  on  behalf  of  the  United  States,  in  such  time  and  form  as  the 
court  should  order. 

The  case  was  a  novel  one,  there  being  nothing  in  the  practice  or 
precedents  of  the  English  courts  furnishing  any  guide,  and  but 
imperfect  analogies  as  to  the  proper  forms  and  practice  in  such  a 
case.  It  was,  however,  determined  that,  although  Congress  might 
prescribe  the  modes  and  forms  of  proceeding  for  this  court,  yet; 
this  was  not  essential,  and  having  failed  so  to  do,  the  court  should 
not  on  this  account  be  deprived  of  jurisdiction;  that  it  was  the  duty 
of  the  court  under  such  circumstances  to  prescribe  these  to  accom- 
plish the  ends  for  which  the  jurisdiction  was  given  by  the  Constitu- 
tion ;  and  that,  if  the  established  forms  and  usages  of  law  and 
equity  afforded  no  precedents  for  a  case  within  the  jurisdiction  of 
the  court,  it  was  the  further  duty  of  the  court  to  mould  and 
adopt  the  requisite  forms  so  to  attain  the  ends  of  justice,  disregard- 
ing nice  technicalities.^ 

'  Gen.  Rules  5  and  6.  '  See   also  Grayson   v.  Virginia,  3 

2  17  How.  478  (1854).  Dall.  339;  Huger  v.  South  Carolina, 


SUPREME    COURT — ORIGINAL   JURISDICTION.  229 

The  general  rules  of  pleading,  practice  and  procedure  applicable 
to  circuit  courts  of  the  United  States,  which  we  have  already  consid- 
ered, would  be  equally  applicable  to  the  Supreme  Court. 

§  281.  Procedure  in  equity;  essentials  of  a  bill. — A  party  desir- 
ing to  invoke  the  original  jurisdiction  of  the  Supreme  Court  on  its 
equity  side  should  first  prepare  his  bill  in  the  form  required  by  the 
chancery  practice  in  England,  subject  to  such  changes  as  have  been 
made  by  the  rules  of  this  court  and  acts  of  Congress.  Under  the 
rules  of  this  court  he  may  omit  the  part  usually  called  the  confed- 
eracy clause,  and  the  clauses  commonly  called  the  charging  part 
of  the  bill ;  also  what  is  generally  known  as  the  jurisdiction  clause, 
that  is,  the  clause  "  that  the  acts  complained  of  are  contrary  to 
equity,  and  that  the  plaintiff  is  without  any  remedy  at  law."^  And 
he  "  may,  in  the  narrative  or  stating  part  of  his  bill,  state  and  avoid 
by  counter-averments,  at  his  option,  any  matter  or  thing  which  he 
supposes  will  be  insisted  upon  by  the  defendant  by  way  of  defence 
or  excuse  to  the  case  made  by  the  plaintiff;"  and  the  prayer  of  the 
bill  must  ask  for  the  special  relief  to  which  the  plaintiff  supposes 
himself  entitled.  The  bill  must  also  contain  a  prayer  for  general 
relief;  and  if  an  injunction  or  writ  of  ne  exeat  regno,  or  any  other 
special  order  pending  the  suit,  is  required,  it  must  be  specially 
asked  for.^ 

The  prayer  for  process  or  subpoena  must  also  set  forth  the  names 
of  all  the  defendants  named  in  the  introductory  part,  and  if  any  of 
them  are  known  to-  be  infants  or  under  guardianship,  it  should  state 
this  fact,  that  the  court  may  be  able  to  make  such  orders  on  the 
return  of  the  subpoena  as  justice  may  require.  But  it  is  sufficient 
to  ask  for  an  injunction  ne  exeat  regno,  or  any  other  special  order, 
pending  the  suit,  in  the  prayer  for  relief,  without  repeating  the 
same  in  the  prayer  for  process.^ 

It  is  further  required  that  "  Every  bill  shall  contain  the  signa- 
ture of  counsel  annexed  to  it,  which  shall  be  considered  as  an  affir- 
mation on  his  part  that  upon  the  instruction  given  to  him  and  the 

3  Dall.  371 ;  New  York  w.  Connecticut,  Pennsylvania  v.    Quicksilver  Co.,  10 

4  Dall.  1 ;  New  Jersey  v.  New  York,  Wall.  553. 

5  Pet.  284  ;  Rhode  Island  v.  Massachu-  ^  Equity  Rule  21. 
setts,  12  Pet.  657  ;  s.  c,  15  Pet.  233  :  ^  Equity  Rule  21. 
Taylor  v.  Salmon,  4  Mylne  &  Craig  *  Equity  Rule  23. 
141  ;  Boyle  v.  Zacherie,  6  Pet.  648  ; 


230  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

case  laid  before  him  there  is  good  ground  for  the  suit  in  the  manner 
in  which  it  is  framed."^ 

Notwithstanding  the  formal  jurisdiction  clause  may  be  omitted 
from  a  bill,  it  is  essential  that  it  should  show  facts  giving  the  court 
jurisdiction.  The  original  jurisdiction  of  the  court  is  quite  limited, 
depending  in  all  cases  upon  the  citizenship  or  character  of  the  par- 
ties, and  not  upon  the  subject-matter  or  the  value  of  the  matter  in 
controversy.  The  required  citizenship  or  character  of  the  parties 
should  of  course  be  set  forth  in  the  bill  in  order  to  show  the  juris- 
diction of  the  court.^ 

§  282.  "When  a  state  is  a  necessary  party. — Where  the  jurisdiction 
of  the  court  depends  upon  the  fact  that  a  state  is  a  party,  it  must 
appear  from  the  bill  that  it  is  so  in  fact,  and  it  is  not  sufficient  that 
it  be  made  to  appear  that  the  state  is  indirectly  interested  in  the 
controversy  and  may  be  consequentially  affected  by  the  result. 
The  state  must  in  such  cases  be  made  a  party  on  the  record,  or 
objection  may  be  taken  by  demurrer  on  that  ground.^  But  it  is 
sufficient  that  the  state  be  substantially  a  party,  as  where  the  bill 
is  filed  by  the  governor  of  a  state  on  its  behalf,*  or  where  the  claim 
made  in  a  libel  in  admiralty  is  upon  the  governor  as  such,  and 
officially,  and  not  against  him  personally.^ 

If  the  suit  is  by  the  state  against  a  corporation,  it  should  be 
shown  by  the  bill  or  declaration  that  the  corporation  is  a  citizen  of 
another  state,  that  is,  incorporated  by  or  organized  under  the  laws 
of  some  other  state,  naming  it;  and  it  is  not  sufficient  merely  to 
aver  that  the  corporation  defendant  is  a  body  politic  by  the  laws  of 
another  state  and  doing  business  within  it.^  Jurisdictional  facts 
should  be  clearly  averred  and  not  left  for  inference.^  Every  bill 
must  contain  in  itself  sufficient  matter  of  fact,  both  as  to  jurisdiction 

1  Equity  Rule   24.      Where  a  bill  Peters  110  ;  Osborne  y.  Bank  of  U.  S., 

for  an  injunction   was  filed  without  9  Wh.  738  ;  Bank  of  U.  S.  ».  Planters' 

the   proper   signature   of    counsel   it  Bank,  9  Wh.  904. 

■was  ordered  to  be  taken  from  the  files ;  *  Georgia  v.  Brailsford,  2  Dall.  405. 

but  on  being  amended  in  this  respect  *  Governor  of  Georgia  v.  Madrazzo, 

it  was,  on  motion,  reinstated,  and  the  1  Pet.  110. 

injunction   granted  as  on  a  bill  and  ®  Pennsylvania  v.  Quicksilver  Co., 

motion  de  novo :  Roach  v.  Hulings,  5  10  Wall.  5.53. 

Cr.  (C.  C.)  637.  '  Railway  v.  Ramsey,  22  Wall.  322  5 

*  Rev.  Stat.  \  687  ;  Equity  Rules  20  Virginia  v.  West  Virginia,  11  Id.  39. 
and  21  ;  Georgia  v.  Brailsford,  2  Dall.  See  also  Bank  of  U.  S.  v.  Planters' 
405  ;  Georgia  v.  Madrazzo,  1  Pet.  110.  Bank,  9  Wh.  904  ;  Bank  of  Kentucky 

*  Fowler  v.  Lindsey,  3  Dall.  411  ;  v.  Wister,  2  Pet.  321 ;  The  Cherokee 
Governor  of  Georgia  v.  Madrazzo,  1  Nation  v.  Georgia,  5  Id.  1. 


SUPREME   COURT — ORIGINAL    JURISDICTION.  231 

and  the  subject  of  the  claim  made,  to  maintain  the  case  of  the 
plaintiff.^ 

§  283.  Frame  of  bills;  interrogatories. — The  introductory  part  of 
a  bill  should  usually  contain  the  names,  places  of  abode,  and  a 
statement  of  the  citizenship  of  all  the  parties,  plaintiffs  and  defend- 
ants. Where,  however,  a  state  is  a  party,  it  would  not  be  necessary 
or  practicable  to  state  the  abode  or  citizenship  of  the  state,  but  a 
statement  of  the  fact  that  it  is  a  state  would  be  suflScient.  The 
general  principles  of  equity  pleading,  practice  and  procedure  are 
applicable  to  all  the  federal  courts  having  equity  jurisdiction.^ 

For  forms  in  the  Supreme  Court,  see  post,  No.  220,  et  seq. 

It  is  not  necessary  to  interrogate  the  defendant,  specially  and 
particularly,  upon  any  statement  in  the  bill,  unless  it  is  desirable 
to  do  so  to  obtain  a  discovery.^  If  interrogatories  are  inserted, 
they  should  be  numbered  consecutively,  1,  2,  3,  etc.  And  the  in- 
terrogatories which  either  of  the  defendants  are  required  to  answer 
should  be  specified  in  a  note  at  the  foot  of  the  bill,  as  follows : 
"  The  defendant  A.  B.  [or  others  named]  is  required  to  answer  the 
interrogatories  numbered  respectively  1,  2,  3,"  etc.  And  if  the 
complainant  in  his  bill  waives  an  answer  under  oath,  or  only  requires 
an  answer  under  oath  in  regard  to  certain  specified  interrogatories, 
the  answer  of  the  defendant  may  be  under  oath  to  the  whole  bill, 
but  it  will  not  be  evidence  in  his  favor,  except  as  to  such  part 
thereof  as  shall  be  directly  responsive  to  such  interrogatories,  un- 
less the  cause  is  set  down  for  a  hearing  on  the  bill  and  answer 
only.^ 

The  answer  may  in  such  cases  also  be  used  as  an  affidavit,  on  a 
motion  to  grant  or  dissolve  an  injunction,  or  on  any  other  incidental 
motion  in  the  cause ;  and  an  answer  under  oath  to  certain  interrog- 
atories will  not  prevent  the  defendant  from  becoming  a  witness  in 
his  own  behalf,  as  provided  by  law.* 

It  is  further  prescribed  that  where  interrogatories  are  used  in  a 
bill  they  shall  be  preceded  by  the  following  form :  "  To  the  end, 
therefore,  that  the  said  defendants  may,  if  they  can,  show  why 
your  orator  should  not  have  the  relief  hereby  prayed,  and  may, 
upon  their  several  and  respective  corporal  oaths,  and  according  to 

*  Harrison  v.  Nixon,  9  Pet.  483.  *  Equity  Rule  41  and  Amend. 

«  Equity  Rule  20.     See  also  Fowler  *  Rev.  Stat.  §  858  ;  Equity  Rule  41, 

r.  Miller,  3  Dall.  411.  as  amended. 
^  Amended  Equity  Rule  40. 


232  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

the  best  and  utmost  of  their  several  respective  knowledge,  remem- 
brance, information  and  belief,  full,  true,  direct  and  perfect  answer 
make  to  such  of  the  several  interrogatories  hereinafter  numbered 
and  set  forth,  as  by  the  note  hereunder  written  they  are  respectively 
required  to  answer ;  that  is  to  say — 

"  1.  Whether,  etc. 

"2.  Whether,  etc." 

For  form  of  bill  to  settle  the  boundary  between  states,  see  jjost., 
No.  221.  For  form  of  bill  to  restrain  the  use  of  a  trade  mark,  see 
post,  No.  230. 

§  284.  Leave  to  file  a  bill ;  practice ;  subpoena. — The  practice  of 
obtaining  leave  to  file  a  bill  in  this  court  is  quite  anomalous ;  but 
it  seems  common,  if  not  universal,  although  there  is  no  statute  or 
rule  of  court  upon  the  subject.  The  usual  course  is  to  file  a  motion 
asking  leave  to  file  the  bill,  which  is  generally  heard  ex  parte  on  a 
regular  motion  day.^  Where,  however,  the  bill  prayed  an  injunc- 
tion to  restrain  the  President  of  the  United  States  from  executing 
a  law  of  Congress,  it  was  held  proper,  under  the  peculiar  circum- 
stances of  the  case,  to  hear  an  argument  against  the  motion  for 
leave  to  file  the  bill.^  If  the  leave  to  file  a  bill  is  granted,  the 
clerk  will  as  a  matter  of  course,  and  without  any  order  of  the  court 
or  a  judge  thereof,  issue  a  subpoena.  But  the  order  may  be  sus- 
pended or  rescinded  by  any  judge  of  the  court,  upon  special  cause 
shown  therefor.^ 

For  forms  for  Supreme  Court,  see  post,  No.  220,  et  seq. 

§  285.  Subsequent  proceedings. — It  has  been  determined  that  if 
the  state  shall  fail  to  appear  after  due  service  of  process  upon  her, 
no  coercive  measures  will  be  allowed  to  compel  an  appearance,  but 
the  complainant  or  plaintiff  will  be  allowed  to  proceed  ex  parte;* 
and  he  may  move  for  commissions  to  issue  to  take  the  depositions 
of  witnesses ;  or  he  may  move  the  trial  of  the  cause  on  oral  testi- 
mony, in  the  usual  way,  as  soon  as  the  cause  is  reached  for  trial, 
or  as  soon  as  permitted  by  the  rules  or  orders  of  the  court.  It  may 
be  observed  that  the  Supreme  Court,  in  the  exercise  of  its  original 
jurisdiction,  has  the  right  to  prescribe  rules  of  practice  and  pro- 

^  Georgia  w.  Grant,  6  Wall.  241.  *  Massachusetts   v.   Rhode    Island, 

^Mississippi  v.    Johnson,    4    Wall.  12  Pet.  755;  Grayson   v.  Virginia,  3 

475.     See  also  Poultnev  v.  La  Fay-  Dall.  320;  New  Jersey  ?;.  New  York, 

ette,  12  Pet.  472.             "  5  Pet.  284. 
*  Equity  Rule  5. 


SUPREME    COURT — ORIGINAL    JURISDICTION.  233 

cedure  for  itself  or  the  inferior  federal  courts,  and  to  make  such 
deviations  from  the  English  common  law  and  admiralty  and 
chancery  practice  as  are  necessary  to  adapt  the  process  and  pro- 
cedure of  the  court  to  the  peculiar  circumstances  of  cases  arising 
in  this  country,  limited  only  by  such  alterations  or  regulations  as 
Congress  may  provide.  In  the  exercise  of  this  authority,  the  court 
framed  General  Rule  5,  prescribing  the  persons  on  whom  original 
process  should  be  served,  and  the  time  of  service,  and  the  proceed- 
ings on  a  failure  of  appearance ;  and  in  the  case  last  cited,  on  the 
failure  of  the  defendant  to  appear  after  due  service  of  process, 
it  was,  on  motion  of  the  complainant,  ordered  and  decreed  that  the 
complainant  be  at  liberty  to  proceed  ex  parte  ;  and  that  unless  the 
defendant,  after  being  served  with  a  copy  of  the  order  and  decree 
sixty  days  before  the  next  following  term  of  the  court,  should  ap- 
pear before  said  term  and  answer  the  bill,  the  court  would  proceed 
to  hear  the  cause  on  the  part  of  the  complainant,  and  to  decree  on 
the  matter  of  said  bill.  Within  the  time  required  by  the  order  and 
decree  of  the  court,  the  state  of  New  York  appeared  in  the  case  by 
its  attorney-general  and  filed  a  demurrer  to  the  bill,  and  the  ques- 
tion was  raised  whether  this  was  a  compliance  with  the  order  of  the 
court  requiring  the  defendant  to  answer.  The  court  held  that  in 
a  legal  sense  a  demurrer  was  an  answer,  though  not  so  in  a  tech- 
nical sense,  and  that  it  was  a  sufficient  compliance  with  the  order.^ 

For  form  of  decree  and  order  on  default  in  such  cases,  see  post, 
No.  250. 

§  286.  Proceedings  on  the  part  of  the  defendant. — If  the  de- 
fendant desires  to  appear  and  defend  the  cause,  or  for  any  purpose 
connected  with  it,  he  should  at  or  before  the  return  day  of  the  pro- 
cess, which,  as  we  have  seen,  must  be  at  least  sixty  days  after  its 
service,  cause  an  appearance  to  be  entered  by  the  clerk,  either  per- 
sonally or  by  his  solicitor,  and  for  that  purpose  should  file  with  him 
a  precipe  for  an  appearance.  The  appearance  may  be  general,  or 
special  for  some  particular  purpose. 

For  form  of  precipe  for  an  appearance,  see  post,  No.  236. 

§  287.  When  a  bill  will  be  dismissed  on  motion. — We  have  noticed 
that  jurisdictional  facts  should  be  clearly  set  forth  in  the  bill  or 
declaration.  A  failure  to  do  so  would  be  fatal  on  a  motion  to  dis- 
miss or  a  demurrer  for  want  of  jurisdiction.     In  the  case  of  Rhode 

^  New  Jersey  v.  New  York,  6  Pet.  323. 


234  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

Island  V.  Massachusetts,'  a  motion  was  made  to  dismiss  on  the 
ground  of  a  want  of  jurisdiction,  which  the  court  entertained 
although  made  after  a  plea  in  bar  had  been  filed.  But  the  court 
overruled  the  motion,  holding  they  had  jurisdiction  of  the  parties 
and  of  the  subject-matter.^ 

The  general  prinoiple  in  relation  to  the  special  limited  original 
jurisdiction  of  this  court  is  that  the  court  will  not  take  cognizance 
of  a  cause  where  its  authority  to  do  so  is  not  manifest  from  the 
record,  and  the  court  will  take  notice  of  this  when  it  is  apparent, 
whether  objection  for  want  of  jurisdiction  is  made  or  not.  See  post, 
Form  No.  226. 

A  motion  to  dismiss  a  cause,  pending  in  the  courts  of  the  United 
States,  is  not  analogous  to  a  plea  to  the  jurisdiction  of  a  court  of 
common  law  or  equity  in  England.  There,  owing  to  the  peculiar 
organization  and  powers  of  the  courts,  the  rule  is  that  a  party 
claiming  an  exemption  from  the  jurisdiction  of  the  court  must  set 
out  the  reasons  by  a  special  plea  in  abatement,  and  show  that  some 
other  court  has  the  exclusive  cognizance  of  the  case,  and  must 
point  out  to  the  court  where  the  case  belongs.  In  order  to  quash 
a  writ  or  dismiss  a  bill  in  England,  for  want  of  jurisdiction,  the 
plaintiff  must  give  a  better  one,  and  he  can  never  put  in  a  second 
plea  to  the  jurisdiction  of  the  court. 

But  in  the  federal  courts,  irregularity  of  process  or  defective  service 
of  the  same  is  waived  by  an  appearance  and  pleading  to  the  issue.^ 
And  when  the  objection  is  that  the  court  has  no  jurisdiction  over 
the  parties  or  the  subject-matter,  the  defendant  need  not  give  the 
plaintiff  a  better  writ  or  bill. 

§  288.  Demurrer  for  want  of  jurisdiction. — A  demurrer  to  a  bill 
or  declaration  operates  as  an  admission,  for  the  purposes  of  the  de- 
murrer only,  that  all  the  averments  which  are  properly  pleaded  are 
true.  Its  purpose  is  to  bring  before  the  court  the  question  of  the 
right  to  maintain  the  suit,  admitting  the  allegations  to  be  true ;  and 
the  court  will  not  inquire  aliunde  what  facts  might  or  might  not 
defeat  it,  as  this  is  the  office  of  a  plea  or  answer.* 

>  12  Pet.  657.  *  Voorhees  v.  Bank  of  the  U.  S.,  10 

^  Equity  Rule  6.     See   also  United  Pet.  449  ;  Toland  v.  Sprague,  12  Pet. 

States  V.  Hughes,  11  How.  552  ;  Geor-  300  ;  Knox   v.    Summers,  3  Cr.  496  ; 

gia  V.  Stanton,  6  Wall.  50;  Cohens  v.  Pollard  v.  Dwight,  4  Cr.  421. 

Virginia,    6   Wh.  264;     Harding    v.  "  Griffing  v.  Gibb,   2    Black    519; 

Handy,    11    Wh.    103;     Harrison   ».  Foot  v.  Link,  5  McLean  616;  Ocean 

Nixon,  9  Pet.  483.  Insurance  Co.  v.  Fields,  2  Story  59 ; 


SUPREME   COURT — ORIGINAL   JURISDICTION.  235 

It  is  manifest  that  if  there  is  a  want  of  allegations  showing  that 
the  parties  to  the  suit  are  the  necessary  and  proper  parties  to  give 
the  court  jurisdiction,  this  would  be  good  ground  for  demurrer,  and 
for  a  dismissal ;  and  the  proper  practice  would  be  to  demur,  although 
advantage  of  the  defect  might  be  taken  afterwards  by  motion,  plea 
or  answer.^ 

So  far  as  our  present  purpose  is  concerned  it  will  be  necessary  to 
consider  the  demurrer  only  in  relation  to  its  office  where  there  is  a 
want  of  proper  allegations  in  a  bill  or  declaration  as  to  the  character 
of  the  parties,  as  it  is  this  which  gives  the  court  original  juris- 
diction. We  should,  however,  observe  that  even  where  the  contro- 
versy is  between  states,  the  court  will  not  take  cognizance  of  a  contro- 
versy which  relates  solely  to  matters  of  a  political  character  ;  and 
a  bill  which  asks  for  relief  in  such  a  case  would  be  subject  to  a 
demurrer.^  But  where  the  political  question  involved,  as 'that  of 
the  right  of  sovereignty  and  jurisdiction  of  a  state  over  disputed 
territory,  is  merely  incidental  to  the  main  question  to  be  determined, 
as  in  case  of  a  bill  to  settle  the  question  of  a  disputed  boundary 
between  states,  the  question  is  not  a  political  one,  so  as  to  oust  the 
jurisdiction  of  the  court. ^ 

In  Georgia  v.  Stanton  the  objection  to  the  jurisdiction  of  the 
court  was  taken  by  motion,  but  it  illustrates  the  general  doctrine 
equally  as  well  as  if  it  had  been  raised  by  a  demurrer.  The  court 
determined  that  the  bill,  both  in  the  body  of  it  and  in  the  prayer 
for  relief,  called  for  the  judgment  of  the  court  upon  political  ques- 
tions ;  that  the  rights  for  the  protection  of  which  the  authority  of 
the  court  was  invoked  were  not  those  of  a  private  character,  but 
related  to  those  of  sovereignty  and  political  jurisdiction ;  and  that 
the  court  had  no  jurisdiction  over  the  subject-matter  presented  by 
the  bill." 

For  form  of  demurrer  for  want  of  jurisdiction,  see  post,  No.  225. 

§  289.  Certificate  of  counsel  and  affidavit  required. — It  is  further 
provided  by  rule  that  "no  demurrer  or  plea  shall  be  filed  to  any 

Woodworth  v.  Edwards,  3  Woodb.  &  Wall.  50  ;   The   Cherokee  Nation  v. 

M.   120;  Bayerque  v.  Cohen,  1  McAll  Georj^ia,  5  Pet.  1. 

113  ;  1  Dan.  Ch.  PI.  543.  ^  Khode  Islands.  Massachusetts,  12 

^Jackson   v.  Ashton,  8   Pet.   148;  Pet.  657  ;  Florida  r.  Georgia,  17  How. 

Wood  V.  Wagnon,  2  Cr.  9 ;  Ross  v.  Du-  478  ;  Cherokee  Nation   v.  Georgia,  5 

vail,  1 3  Pet.  45  ;  Gaylords  v.  Kelshaw,  Pet.  1. 

1  Wall.  81.  *  6  Wall.  50.    See  also  Mississippi  v. 

*  State   of    Georgia  v.    Statiiton,    6  Johnson,  4  Wall.  475. 


236  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

bill,  unless  upon  a  certificate  of  counsel  that  in  his  opinion  it  is  well 
founded  in  point  of  law,  and  supported  by  affidavit  of  the  defend- 
ant that  it  is  not  interposed  for  delay,  and  if  a  plea,  that  it  is  true 
in  point  of  fact.  For  form  of  certificate  of  counsel  to  a  demurrer, 
see  post,  No.  226;  for  form  of  affidavit,  No.  227. 

§  290.  Office  of  a  plea. — The  office  of  a  plea  is  to  furnish  some 
fact  or  facts  not  apparent  on  the  bill,  but  which,  if  they  had  been 
therein  stated,  would  have  rendered  the  bill  demurrable.  The  plea 
should  contain  averments  which,  if  true,  would  defeat  the  relief 
asked  for  by  the  plaintiff.  It  is  allowed  in  order  to  save  expense 
and  to  protect  the  defendant  from  a  discovery  which  ought  not 
to  be  required  under  the  facts  and  circumstances  of  the  case ; 
and  it  enables  the  court  to  decide  upon  the  issues,  taking  the  bill 
to  be  true  so  far  as  it  is  not  contradicted  or  qualified  by  the 
plea. 

An  illustration  of  the  office  of  plea  might  be  found  in  case  of  a 
bill  filed  in  this  court  by  a  consul  against  a  citizen.  If  it  should 
be  averred  in  the  bill  that  the  complainant  was  a  consul,  which 
would  be  an  essential  jurisdictional  fact  to  be  shown,  when  in  fact  he 
was  not  a  consul,  the  objection  on  this  account  could  not  be  taken 
by  demurrer,  because  a  demurrer  admits  the  facts  well  pleaded. 
The  question  could  in  such  a  case  be  raised  by  a  plea  denying 
that  the  plaintiff  was  in  fact  a  consul.  The  jurisdictional  question 
would  thus  be  presented  and  determined  by  the  judgment  of  the 
court  on  the  single  issue  whether  the  plaintiff  was  or  was  not  a 
consul.  This  would  be  a  plea  to  the  jurisdiction  of  the  court  in 
abatement,  and  not  in  bar  of  another  action  in  another  court. ^ 
Another  appropriate  case  for  a  plea  would  be  where  there  was 
another  suit  pending  for  the  same  matter,  where  it  would  also  be  in 
abatement.^ 

It  is  sometimes  necessary  to  accompany  a  plea  with  an  answer  ; 
especially  is  this  required  in  certain  cases  by  the  rules  of  practice 
prescribed  for  the  courts  of  equity  of  the  United  States.  Equity 
Rule  32  provides  that  "in  every  case  in  which  the  bill  specially 
charges  fraud  or  combination,  a  plea  to  such  part  must  be  accom- 
panied with  an  answer  fortifying  the  plea  and  explicitly  denying 

1  1  Dan.  Ch.  PI.  (4  Am.  ed.  Perkins)  Way  v.  Bagshaw,  C.  E.  Green  (16  N. 

626  ;  Jones  v.  League,  18  How.  76.  J.)  213  ;    Cleveland,   etc.,    R.   Co.   v. 

''  Dan.  2  Ch.  PI.  (4  Am.  ed.)  633  ;  Erie,  27  Pa.  St.  380;  iMann  v.  Richard- 

Mathews  V.  Robers,  1  Green,  Ch.  338  ;  son,  21  Pick,  259. 


SUPREME    COURT — ORIGINAL   JURISDICTION.  237 

the  fraud  and  combination,  and  the  facts  on  which  the  charge  is 
founded."^ 

It  is  not,  however,  within  the  proper  scope  of  this  treatise  to 
consider  fully  the  various  kinds  of  pleadings  at  law  and  in  equity ; 
and  the  reader  is  referred  to  those  special  treatises  on  these  sub- 
jects where  these  matters  are  discussed  and  illustrated. 

We  may  remark  in  this  connection  that  by  the  general  rules  of 
equity  practice,  the  plea  was  required  to  be  verified  by  affidavit,  and 
under  a  rule  of  this  court  a  plea  as  well  as  a  demurrer  is  not  only 
required  to  be  supported  by  the  affidavit  of  the  defendant  that  it  is 
not  interposed  for  delay,  and  in  case  of  a  plea,  that  it  is  in  point  of 
fact  true,  but  the  certificate  of  counsel  is  required  that  in  his  opinion 
it  is  well  founded  in  point  of  law.^ 

For  forms  of  plea,  certificate  and  verification,  see  post,  Nos.  47,  231. 

For  form  of  affidavit  to  demurrer,  see  post,  No.  46. 

§  291.  Setting  down  for  a  hearing. — To  set  down  a  demurrer  or 
plea  for  a  hearing  is  to  enter  the  title  of  the  cause  in  the  list  of 
matters  ready  k)  come  on  for  a  hearing  at  the  next  rule  day  of  the 
court,  specifying  the  matter  to  be  heard,  and  of  which  the  opposite 
party  must  take  notice.  The  entry  may  be  made  as  a  matter  of 
course.  On  the  argument  of  a  plea  it  has  been  held  that  the  alle- 
gations of  the  bill  may  be  taken  less  strongly  against  the  plaintifl" 
than  they  would  be  on  the  argument  of  a  demurrer.^  "  If  a  plea 
is  supported  by  an  answer,  upon  the  argument  of  the  plea  the 
answer  may  be  read  to  counterprove  the  plea ;  and  if  the  defendant 
appears  not  to  have  sufficiently  supported  his  plea  by  his  answer, 
the  plea  must  be  overruled  or  ordered  to  stand  for  an  answer  only." 
Where  a  defendant  answered  to  an  original  bill,  which  was  after- 
wards amended,  and  the  defendant  put  in  a  plea  to  the  amended 
bill,  the  plaintiff  was  permitted  to  read  the  answer  to  the  original 
bill,  to  counterprove  the  plea  to  the  amended  bill.* 

On  the  argument  of  a  plea  the  general  rule  is  that  the  averments 
of  the  bill  must  be  taken  as  true,  except  as  to  those  denied  by  the 
plea,  and  by  the  answer  if  one  is  filed  in  support  of  the  plea ;  and 

1  1  Dan.  Ch.  PI.  (4th  Am.  ed.)  614  ;  «  Equity  Rule  31. 

Story's  Eq.  PI.  g  681,  et  seq. ;  Syms  v.  *  Rumbold  v.  Forteath,  2  Jur.  N.  S. 

Lyle,  4  Wash.  (C.  C.)  3U3  ;  Living-  686. 

ston  V.   Story,   9  Pet.  632;   s.  c,  11  *1    Dan.    Ch.    PI.    (4th   Am.    ed.) 

Pet,  352 ;    De    Sobry  v.  Nicholson,  3  695. 
Wall.  420;  Heath  v.  Erie  R.  Co.,  8 
Blatch.  347. 


238  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

if  set  down  by  the  plaintiff  for  a  hearing,  without  a  reply,  the  aver- 
ments contained  in  it  must  be  treated  as  true.^  So  the  general 
rule  is  that  no  plea  or  demurrer  can  be  held  bad  and  overruled 
upon  the  argument  merely  because  it  does  not  cover  so  much  of  the 
bill  as  it  might  have  extended  to.^  Nor  shall  it  be  overruled  merely 
because  the  answer  of  the  defendant  may  extend  to  some  part  of  the 
same  matter  as  is  covered  by  it.^ 

§  292.  "Where  the  plea  or  demurrer  is  overruled. — If,  upon  the 
hearing  of  a  plea  or  demurrer,  it  is  overruled,  the  plaintiff,  on  gen- 
eral principles,  is  entitled  to  his  costs  up  to  that  time,  unless  the 
court  is  satisfied  that  he  had  good  ground,  in  point  of  law  or  fact,  to 
interpose  the  same,  and  that  it  was  not  put  in  vexatiously  or  for 
the  purpose  of  delaying  the  cause ;  *  and  the  court  may,  in  accord- 
ance with  the  general  procedure  in  such  cases,  order  the  defendant 
to  answer  the  bill,  or  so  much  thereof  as  is  covered  by  the  plea  or 
demurrer,  the  next  succeeding  rule  day  or  at  such  other  time  as, 
consistently  with  justice  and  the  rights  of  the  defendant,  the  same 
can,  in  the  judgment  of  the  court,  be  reasonably  done ;  in  default 
whereof  the  bill  may,  if  so  ordered,  be  taken  against  him  pro  con- 
fesso,  and  the  matter  thereof  proceeded  in  and  decreed  accordingly.^ 

§  293.  "Where  the  plea  or  demurrer  is  allowed. — If  a  plea  or 
demurrer  is  allowed  upon  the  hearing,  the  court  may  allow  the 
plaintiff,  on  motion,  to  amend  the  bill  upon  such  terms  as  appear 
reasonable,  but  the  defendant  is  entitled,  as  we  have  stated,  to  his 
costs.®  In  case  of  a  failure  of  the  plaintiff  to  reply  to  a  plea,  or  to 
set  down  the  same  for  a  hearing  at  the  proper  time,  he  may  be  con- 
sidered as  admitting  the  truth  and  sufficiency  of  it,  and  his  bill  must 
be  dismissed  of  course,  unless  the  court  shall  allow  him  further  time 
to  reply  or  to  set  the  plea  down  for  argument.^  But  the  dismissal 
of  a  bill  in  such  a  case  would  be  no  bar  to  another  suit. 

For  form  of  answer  to  a  bill  of  complaint,  see  post,  No.  232. 

For  form  of  oath  to  an  answer,  see  post,  No.  233. 

^  Borgandus  v.  Trinity  Church,  4  ^  Equity  Rule  37. 

Paige  178  ;  Lawrence  v.  Pool,  2  Sand.  *  Equity  Rule  34. 

S.  C.  540;   Gallagher  v.    Roberts,   1  Ud. ;    Bank  of  U.  S.  w.  White,  8 

Wash.   (C.  C.)   320;   Rowley  r.  Wil-  Pet.  262. 

liams,  5  Wis.  151  ;  Davison  v.  John-  ^  Equity  Rule  35. 

son,  1  C.  E.  Green  (16  N.  J.  Eq.J  112.  '  Hughes  v.  United  States,  4  Wall. 

«  Equity  Rule  36.  232. 


CHAPTER  XIII. 

WRITS    OF    ERROR   AND   APPEAL. 

§  294.  Appellate  jurisdiction  of  the  Supreme  Court. — The  appel- 
late jurisdiction  of  the  Supreme  Court  is  the  most  extensive  and 
important  of  its  functions.  The  Revised  Statutes  provide  that  "  all 
final  judgments  of  any  circuit  court  or  any  district  court  acting  as  a 
circuit  court,  in  civil  actions  brought  there  by  original  process  or 
removed  there  from  courts  of  the  several  states,  and  all  final  judg- 
ments of  any  circuit  court  in  civil  actions  removed  there  from  any 
district  court,  by  appeal  or  writ  of  error,  where  the  matter  in  dis- 
pute, exclusive  of  costs,  exceeds  the  sum  or  value  of  five  thousand 
dollars,  may  be  re-examined  and  reversed  or  aflSrmed  in  the  Supreme 
Court  upon  a  writ  of  error."  ^  Besides  this,  it  can  on  appeal,  as  we 
shall  hereafter  more  particularly  notice,  review  the  decisions  of  the 
inferior  federal  courts  in  equity  and  admiralty  cases ;  and,  in  some 
special  cases,  without  regard  to  the  value  of  the  matter  in  contro- 
versy ;  and  the  final  judgments  of  state  courts  may  also  be  reviewed 
on  writs  of  error.^ 

§  295.  Writ  of  error ;  final  judgments. — It  will  be  observed  that 
the  judgments  that  may  be  reviewed  upon  a  writ  of  error  are  final 
ones.  If  a  cause  is  not  finally  disposed  of  by  the  judgment  of  the 
circuit  court,  it  is  not  such  a  final  judgment  as  may  be  reviewed  on 
error. 

Thus,  an  order  of  the  circuit  court  to  quash  an  execution;^  or 
a  decision  of  the  court  upon  a  rule  or  motion;*  or  a  judgment 
upon  a  demurrer  to  some  parts  of  a  replication,  and  a  motion  to 
strike  out  other  parts,  still  leaving  in  the  replication  some  essential 
allegations,^  are  not  such  final  judgments  as  can  be  reviewed  by 
the  Supreme  Court  on  a  writ  of  error. ^ 

*  Rev.  Stat.  §  691,  as  amended  by  Brooks  v.  Hunt,  17  John.  484;  Dos- 
the  act  of  February  16,  1875,  ch,  77,  well  v.  De  La  Lanza,  20  How.  29  -, 
\  3,  18  Stat.  316.  Henderson  v.  Moore,  5  Cr.  12;   Barr 

2  Rev.  Stat.  II  692,  709,     See  also  v.  Gratz,  4  Wh.  220;  Marine  Ins.  Co. 

post,  \  327.  V.  Hodgson,  6  Cr.  206. 

*  McCargo  v.  Chapman,  20  How.  *  Holcombe  v.  McKusick,  20  How. 
555  ;  Boyle  v.  Zacherie,  6  Pet.  648 ;  552. 

Early  v.  Rogers,  16  How.  599.  ®  If  a  circuit  court  on  motion  dis- 

*  Toland  v.  Sprague,  12  Pet.  300  ;     miss  a  suit  on  the  ground  that  it  has 


240  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

The  whole  cause  in  the  court  below  must  be  disposed  of,  as  set- 
tled by  the  general  practice  in  this  country  and  by  the  King's  Bench 
in  England,  or  the  writ  will  not  lie ;  and  the  cause  cannot  be  sent 
up  in  fragments.^  So  an  order  of  the  court,  affirming  the  refusal 
of  the  court  below  to  grant  a  new  trial,  is  not  a  final  judgment  which 
can  be  reviewed  in  this  court.^  Nor  will  a  writ  of  error  lie  from  a 
decision  refusing  a  change  of  venue,  or  to  postpone  a  trial. ^ 

But  a  final  disposition  of  the  whole  case,  and  as  to  all  the  parties 
thereto,  is  a  final  judgment  from  which  a  writ  of  error  or  an  appeal 
will  lie ;  and  where  the  circuit  court  sustains  a  demurrer  that  de- 
termines the  merits  of  the  case  and  renders  judgment  thereon,  this 
may  be  re-examined  on  a  writ  of  error,  without  any  formal  bill  of 
exceptions.* 

For  forms  in  such  cases,  see  post^  No.  236,  et  seq. 

§  296.  All  the  parties  must  join  in  a  -writ  of  error  or  appeal. — It  is 
essential  that  all  the  parties  against  whom  a  joint  judgment  has 
been  rendered  should  join  in  the  application  for  a  writ  of  error  or 
in  the  appeal,  unless  sufficient  cause  be  shown  for  the  non-joinder.^ 
If  one  of  two  parties  refuses  to  join  in  a  writ  of  error,  the  other 
party  may  issue  a  writ  of  summons,  by  which  the  party  refusing  to 
join  may  be  brought  before  the  court ;  and  if  he  still  refuses,  an 
order  or  judgment  of  severance  may  be  made  by  the  court  in  which 
case  the  party  desiring  to  prosecute  a  writ  of  error  or  appeal  can 
do  so  alone.  The  effect  of  the  judgment  of  severance  is  that  the 
party  refusing  to  proceed  is  barred  from  prosecuting  the  same  right 
in  another  action,  and  the  defendant  in  the  writ  of  error  cannot  be 
harassed  by  a  subsequent  suit  or  proceeding  for  the  same  cause  of 
action,  by  the  party  thus  refusing  to  unite  in  the  application  for 
the  writ,  it  being  joint  in  its  nature.^ 

no  jurisdiction,  a  writ  of  error  will     Gorman  v.  Lenox,  15  Pet.  115;   Suy- 
not  lie  to  revise  the  judgment:    In-    dam  v.  Williamson,  20  How.  436. 
surance   Co.   v.    Comstock,   16  Wall.         *  Williams  v.  Bank,    11   Wh.  414; 
258;    Kailroad    Co.   v.   Wiawall,    23     Masterson  i>.  Herndon,  10  WalL  416  ; 
Wall.  507.  Hampton   v.    Rouse,    13   Wall.    187  ; 

1  United  States  w.  Girault,  11  How.  Simpson  v.  Greeley,  20  Wall.  162; 
22  ;   Peet  v.  McGraw,  21  Wend.  667.       O'Dowd  v.  Russell,  14  Wall.  402. 

'  Simpson  v.  Greeley,  20  Wall.  152  ; 

Mussina    v.    Cavazos,    6    Wall.    355 ; 

Masterson  v.  Herndon,  10  Wall.  416  ; 

Williams  v.   Bank  of  the   U.  S.,    11 


^  Sparrow  v.  Strong,  4  Wall.  584 
Connor  v.  Peugh,  18  How.  394 
Earley  v.  Rogers,  16  How.  599 
Pomeroy  v.  State  Bank,  1  Wall.  592 

Steamboat  Burns,  9  Wall.  237.  Wh.   414  ;    Todd   v.  Daniel,   16  Pet. 

Cook  y.  Burnley,  11  Wall.  659.  521;    Wilson   v.   Insurance   Co.,    12 


Rogers  v.  Burlington,  3  Wall.  654 ; 


SUPRKME    COURT — APPELLATE    JURISDICTION.  241 

But  there  are  cases  where,  although  there  are  several  parties  de- 
fendant, one  of  them  may  hring  a  writ  of  error  without  joining  the 
others.  For  example,  where  a  suit  was  brought  by  the  plaintifts 
against  a  defendant  to  recover  a  balance  due  for  work  and  materials 
furnished  in  building  a  house,  and  to  enforce  a  lien  therefor  against 
the  house  and  the  lot  on  which  it  was  situated  ;  and  several  other 
parties  who  "  had  or  claimed  to  have  some  interest,  claim  or  lien 
on  the  incumbered  premises,"  as  stated  in  the  petition  or  bill,  were 
mad,e  defendants  ;  but  it  was  also  claimed  by  the  plaintifif  in  his 
said  petition  or  bill  that  "  their  interest,  claim  or  lien,  if  any,  had 
accrued  subsequently  to  that  of  plaintiifs  ;"  and  it  prayed  for  a  per- 
sonal judgment  only,  against  the  party  for  whom  the  work  and 
materials  were  furnished,  and  that  the  other  defendants  be  barred 
and  foreclosed  of  all  right,  claim,  lien,  etc.,  in,  on  and  to  the 
jiremises,  and  that  the  premises  be  decreed  to  be  sold,  etc.,  and  a 
judgment  was  rendered  against  the  defendant  first  above  mentioned 
in  personam^  for  the  debt,  and  a  decree  entered  that  the  premises 
should  be  sold,  etc.,  and  to  this  judgment  the  latter  sued  out  a  writ 
of  error,  it  was  held  by  the  Supreme  Court  that  the  judgment  was 
of  such  a  separate  character  as  authorized  him  to  ask  to  have  it 
reviewed  in  the  latter  court,  without  joining  with  him  his  co- 
defendants  in  the  court  below. ^ 

§  297.  Proper  parties  on  the  record. — A  judgment  will  not  be  re- 
examined upon  a  writ  of  error  unless  there  are  proper  parties  to  it. 
An  inanimate  object,  like  a  vessel,  has  not  the  legal  capacity  to 
prosecute  legal  proceedings  in  the  federal  courts ;  and  hence  it 
cannot  prosecute  a  writ  of  error  or  appeal.  But  in  proceedings 
in  rem,  if  a  person  claims  the  thing  or  its  proceeds,  he  becomes  a 
party  to  the  proceedings,  and  has  all  the  rights  in  respect  to  a  writ 
of  error  or  an  appeal  that  any  other  party  has.^ 

§  298.  Amount  in  controversy. — The  provision  of  the  statute 
under  consideration  limits  the  right  to  the  writ  to  cases  "  where 
the  matter  in  dispute,  exclusive  of  costs,  exceeds  the  sum  or  value 
of  $5000."3 

Pet.    140;    Brooke's   Abr.     238,    tit.         ^  Germain  w.  Mason,  12  Wall.  2&9. 
"  Summons  and  Severance;"  2Rolle"s        ^  Steamboat  Burns,  9  Wall.  137. 
Abr.,  ifiY.  same,  488  :  Ai-ch.  Civ.  Plead.         ^  Rev.  Stat.   I  691,  as  amended  by 
54  ;  Tidd's  Prac.  129,  1136,  1169;  De-     the  act  of  February  16,  1875. 
neal  v.  Archer,  8  Pet.  526  ;   Smyth  v. 
Strader,  12  How.  327. 
16 


242  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

It  is  manifest  that  the  judgment  itself  frequently  determines  the 
question  as  to  the  right  so  far  as  the  value  in  controversy  is  con- 
cerned, as,  for  example,  where  it  is  against  a  defendant  and  it  does 
not  exceed  ^5000,  exclusive  of  costs.  In  such  a  case  if  he  were  to 
prosecute  a  writ  of  error  the  Supreme  Court  would  have  no  juris- 
diction, although  the  claim  of  the  plaintiff  might  exceed  that  sum.' 
Thus  where  the  plaintiff  claimed  for  the  infringement  of  a  patent 
more  than  the  amount  required  to  entitle  him  to  a  writ  of  error,  but 
obtained  a  judgment  for  only  $400,  it  was  held  on  a  writ  of  error 
by  the  defendant  that  the  amount  in  controversy  as  to  him  was  only 
$400,  and  that  the  court  had  no  jurisdiction  of  the  writ.^ 

If  the  judgment  below  is  against  the  defendant,  the  amount  of 
the  judgment  on  general  principles  would  fix  the  amount  in  contro- 
versy as  to  him,  in  the  absence  of  a  counter  claim ;  but  if  the  judg- 
ment be  less  than  $5000  for  either  party,  and  the  plaintiff  sues  out 
the  writ  of  error,  this  court  has  jurisdiction  if  the  damages  claimed 
in  the  declaration,  less  the  amount  of  the  judgment,  exceed  that 
sum.^  The  matter  in  controversy  is  the  amount  at  the  time  the 
judgment  is  rendered,  and  when  the  right  to  a  review  attaches  ; 
hence  the  interest  accruing  thereafter  cannot  be  added  to  the 
judgment  in  computing  the  amount  in  controversy.*  The  amount 
in  dispute  is  usually  found  in  the  pleadings,  but  the  court  will  not 
be  confined  to  them  in  determining  this  question  of  the  sufficiency 
of  the  matter  in  controversy,  and  it  is  sufficient  to  defeat  the  right 
review  if  it  otherwise  appears  in  the  record.^ 

In  an  action  upon  a  money  demand  where  the  general  issue  is 
pleaded,  the  value  in  dispute  is  the  debt  claimed  and  its  amount 
stated  in  the  body  of  the  declaration,  and  not  merely  the  damages 
claimed  in  the  prayer  for  judgment  at  its  conclusion  ;  and  if  the  debt 
does  not  exceed  $5000  the  plaintiff  is  not  entitled  to  a  review  on  a 
writ  of  error,  although  the  amount  of  damages  claimed  exceeds  that 
sum.^  But  if  an  action  is  brought  to  recover  less  than  the  juris- 
dictional amount  required  on  a  writ  of  error,  and  the  defendant 
pleads  a  set-off  or  counter  claim  in  excess  of  that  amount  in  a  state 

1  Smith  V.  Honey,  3  Pet.  469.  *  Bank  of  U.  S.  v.  Daniel,  12  Pet. 

■^Gordon    v.    O^den,    3      Pet.     33  32  ;  Smith  y.  Honey,  3  Pet.  469  ;  Wal- 

(1830).     See  also  Rodd  «;.  Heartt,  17  ker  v.   United    States,  4  Wall.   163; 

Wall.  354 ;    Clifton    v.   Sheldon,    23  Western  Union  Tel.  Co.,  93  U.  S.  565. 

How.  481  ;  Wise  v.   Turnpike  Co.,  7  ^  Gray  v.  Blanchard,  97  U.  S.  564. 

Cr.  276.  6  Lee    v.    Watson,    1    Wall.    337 : 

*  Walker  v.  United  States,  4  Wall.  Schacker  v.  Hartford  Fire  Ins.  Co.,  93 

163  ;  Gordon  v.  Ogden,  3  Pet.  33.  U.  S.  241. 


SUPREME   COURT — APPELLATE   JURISDICTION.  243 

where  he  is  entitled  to  a  judgment  for  the  excess  of  such  a  set-off 
or  counter  claim,  if  the  judgment  is  against  him  he  may  sue  out 
a  writ  of  error.^  The  amount  of  the  matter  in  controversy  must 
exceed  $5000,  or  there  would  be  no  jurisdiction  on  a  writ  of 
error ;  hence  if  it  is  precisely  that  amount,  no  Writ  of  error  lies.^ 
And  if  the  verdict  is  for  more  than  $5000,  and  the  party  in  whose 
favor  it  is  rendered  will  enter  a  remittitur  for  the  excess  before  the 
entry  of  a  judgment  on  the  verdict,  this  will  defeat  any  right  to  the 
writ,  as  the  amount  of  the  matter  in  controversy  at  the  time  of  the 
judgment  entry  would  be  less  than  the  amount  required.^  And  if 
a  judgment  is  for  more  than  $5000,  yet  if  the  cause  was  tried  on 
an  agreed  statement  of  facts  in  which  the  defendant  admitted  that 
he  owed  sufficient  of  the  amount  claimed  to  reduce  the  matter  in 
dispute  to  less  than  that  sum,  no  writ  of  error  will  lie.* 

The  same  general  principles  prevail  where  the  value  of  the 
amount  in  controversy  is  an  element  of  jurisdiction  in  all  the 
various  federal  courts,  whether  at  law  or  in  equity,  and  whether 
on  a  writ  of  error  or  appeal.^ 

§  299.  Where  the  matter  in  controversy  is  not  susceptible  of 
valuation. — The  matter  in  controversy  must  be  such  as  is  capable 
of  a  pecuniary  estimate  of  its  value,  otherwise  there  can  be  no 
appellate  jurisdiction  of  the  suit.  Thus,  for 'example,  where  the 
matter  in  dispute  is  the  right  to  freedom;^  or  the  right  to  the  cus- 
tody of  a  minor  child  ;^  or  whether  the  defendant  below  is  liable  to 
imprisonment  on  execution  process  ;*  or  as  to  the  right  of  guardian- 
ship of  the  persons  and  property  of  children,  but  not  on  account  of 
any  pecuniary  value  attached  to  the  office,^ — there  is  in  such  cases 
no  right  of  revision  on  writ  of  error  or  appeal,  as  there  is  no 
matter  in  dispute  susceptible  of  a  pecuniary  valuation. 

But  it  has  been  held  that  a  "  mining  claim"  in  Nevada  may  be 

*  Ryan  v.  Bindley,  1  Wall.  66.  contrary  is  shown  :    Troy  v.  Evans, 
^  Walker  u.  United  States,  4  Wall.     97  U.  S.  1.     If  the  value  of  the  amount 

163 ;     Western    Union    Tel.    Co.    v.  in  controversy  is  precisely  $5UUU,  no 

Rogers,  93  U.  S.  565.  writ  of  error   lies:    Western    Union 

»  Thompson  v.  Butler,  95  U.  S.  694.  Tel.  Co.  v.  Rogers,  93  U.  S.  565. 

*  Tinstman  v.   First  Nat.  Bk.,  100        «  Lee  v.  Lee,  8  Pet.  44. 

U.  S.  6.  '  Barry  v.  Mercein,  5  How.  103. 

*  See  ante,  ch.  8;  also  Yzanga  Del  *  Pratt  v.  Fitzhugh,  1  Blatch.  271. 
Valie  V.  Harrison,  93  U.  S.  233  ;  Cook  »  De  Kraft  v.  Barney,  2  Black  704 ; 
V.  United  States,  2  Wall.  518.  The  Ritchie  v.  Manro,  2  Pet.  243.  A  writ 
judgment  against  the  defendant  is  of  error  will  not  lie  to  a  refusal  to  set 
prima  facie  the  amount  in  contro-  aside  a  judgment  on  motion :  Connor 
versy,  and   this   continues  until  the  v.  Peugli,  18  How.  394. 


244  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

the  subject  of  a  controversy,  and  of  value  in  money,  even  though 
the  land  on  which  the  claim  exists  has  never  been  surveyed  and 
brought  into  market ;  and  if  it  appears  that  it  is  of  the  requisite 
value,  the  Supreme  Court  will  take  cognizance  of  the  case  upon  a 
writ  of  error  or  appeal.' 

It  is  not  sufficient,  as  we  have  noticed,  that  the  value  of  the 
matter  in  dispute  is  precisely  five  thousand  dollars,  but  it  must 
exceed  that  sum  to  give  this  court  jurisdiction  ;  and  where  the  judg- 
ment is  for  that  amount  in  favor  of  the  plaintiflf,  and  the  defendant 
prosecutes  in  error,  the  amount  in  controversy  is  fixed  by  the  judg- 
ment, and  this  court  has  no  jurisdiction.^ 

§  300.  Value  a  jurisdictional  fact ;  consent  cannot  confer  jurisdic- 
^jjjn — It  is  evident  that  the  value  of  the  matter  in  dispute  is  an 
essential  jurisdictional  fact,  and  this  court  will  not  take  cognizance 
of  a  writ  of  error  or  appeal  unless  it  be  made  in  some  manner  to 
appear  that  it  is  of  the  value  fixed  by  the  statute.  And  it  is  a 
ffeneral  doctrine  of  the  federal  courts  that  consent  cannot  confer 
jurisdiction  in  respect  to  the  value  of  the  amount  in  controversy.^ 

The  statute  carefully  restricts  the  appellate  jurisdiction  of  this 
court,  and  where  this  is  wanting,  or  is  not  made  to  appear  from  the 
record,  it  will  not  examine  into  the  questions  presented  in  a  case 
by  the  consent  of  parties  or  on  the  request  of  counsel.^ 

§  301.  Where  the  value  of  the  matter  in  controversy  does  not 
appear  on  the  record. — In  some  cases  it  is  not  essential  that  the 
value  of  the  matter  in  controversy  be  stated  in  the  declaration  or 
other  pleading;  as  for  instance  in  cases  of  replevin,  and  of  pro- 
ceedings for  a  writ  of  mandamus,  and  in  suits  in  ejectment  and  for 
dower. 

On  a  writ  of  error  or  appeal  in  such  cases,  the  practice  is  to 
allow  affidavits  in  the  Supreme  Court  to  show  the  value  of  the 
matter  in  the  controversy.^     But  this  will  not  be  allowed  on  appeal 

1  Sparrow  v.  Strong,  3  Wall.  97.  *  Mills  v.  Brown,  16  Pet.  525  ;  The 
"^  Walker  v.  United  States,  4  Wall.  Lucy,  8  Wall.  307  ;  The  Nonesuch,  9 
163:    Knapp  w.  Banks,  2   How.    73;  Wall.   504;    Pennsylvania   v.  Quick- 
Smith  V.  Honey,  3  Pet.  469  ;  Gordon  silver   Co.,    10  Wall.    558  ;    Railway 
V  Ogden,  Id.  33.  Company  v.  Ramsey,  22  Wall.   322 ; 

^'  Kelsey  v.  Forsyth,  21  How.    85  ;  Walker  v.  Taylor,  5  How.  64. 
Guilds.  Frontin,  18  How.  135;  Suy-        ^  Rush   v.  Parker,    5  Cr.  287;  Ex 

da,m   V.   Williamson,    20   How.   428;  parte  Bradstreet,  7  Pet.  634;  Course 

Sampson  v.  Welsh,  24  How.  207.  But  v.   Steadman,    4  Dall.  22.     See  also 

see   Arthurs  v.    Hart,    17    How.    6 ;  Peyton    v.  Robertson,    9  Wh.    527 ; 

Shankland  v.  Washington,  5  Pet.  390  ;  Cooke  v.  Woodrow,  4  Cr.  13. 
Railroad  Co.  v.  Ramsey,  22  Wall.  322. 


SUPREME    COURT — APPELLATE    JURISDICTION.  245 

after  the  cause  has  been  dismissed  for  want  of  jurisdiction  apparent 
upon  the  record.^  The  same  practice  prevails  in  admiralty  cases ; 
and  where  it  does  not  appear  from  the  record  in  those  cases  what 
the  value  of  the  interest  of  the  appellant  is,  he  will  be  permitted 
in  this  court  to  make  proof  that  his  interest  exceeds  the  jurisdic- 
tional sum,  and  allowed  time  therefor.^ 

§  302.  When  the  value  stated  in  the  pleading  is  conclusive. — - 
Where  the  declaration  or  bill  states  the  value  of  the  property  or 
interest  in  controversy,  this  is  held  to  be  conclusive  of  that  fact, 
and  affidavits  will  not,  generally,  be  received  to  show  the  property 
or  interest  of  more  value.'  Where  there  was  a  claim  on  a  fund  in 
the  registry  of  the  admiralty  of  several  mortgages  secured  by  one 
mortgage,  and  the  fund  exceeded  the  jurisdictional  amount,  it  was 
held  that  an  appeal  would  lie  to  this  court  by  the  mortgagees  in  a 
body,  though  the  claim  of  no  one  of  them  exceeded  that  sum.*  But 
where  a  decree  was  made  by  the  circuit  court  sitting  in  admiralty 
that  two  persons  should  pay  a  certain  amount  of  freight  in  different 
sums,  neither  of  which  amounted  to  the  sum  that  gave  the  right  of 
appeal,  though  the  sums  decreed  to  be  paid  by  both  exceeded  that 
amount,  the  court,  on  appeal  by  one  of  the  parties,  held  that  it  must 
be  dismissed  for  want  of  jurisdiction,  as  the  rights  of  the  two  were 
distinct  and  independent,  and  that  if  the  freight  was  a  joint  mat- 
ter, both  should  have  joined  in  the  appeal.^  So  where,  in  proceed- 
ings under  libels  in  admiralty,  for  seamen's  wages,  the  circuit  court 
adjudged  that  there  was  due  the  libellants  over  $32,000  from  the 
respondents,  and  a  separate  decree  was  entered  for  the  amount  due 
each  libellant  respectively,  but  none  of  the  sums  thus  decreed 
amounted  to  the  jurisdictional  sum  required  for  an  appeal,  and  from 
these  separate  decrees  the  respondents  in  the  circuit  court  prayed 
an  appeal  to  this  court,  and  gave  a  separate  appeal  bond  upon  the 
appeal  from  each,  as  well  as  a  joint  appeal  from  the  whole,  the 
appeal  was  dismissed,  upon  the  ground  that  the  sum  in  controversy 
in  each  case  was  less  than  the  amount  required  to  confer  jurisdiction 
on  this  court.* 

^  Richmond  v.  Milwaukee,  21  How.  Bank  of  Alexandria  v.  Hooff,  7  Pet. 

391.  168. 

2  The  Grace  Girdler,  6  Wall.  441 ;         *  Rodd  v.  Heartt,  17  Wall.  354. 
Richmond  v.  Milwaukee,  supra.  ^  Clifton  v.  Sheldon,  23  How.  481. 

^  Richmond  v.  Milwaukee,  21  How..        ^  Oliver  v.  Alexander,  6  Pet.  143. 
391 :  Brown  v.  Shannon,  20  How.  55 ; 


246  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

The  same  doctrine  applies  in  proceedings  bj  a  libel,  for  salvage, 
and  in  proceedings  in  rem  generally. 

When  separate  claims  are  interposed  for  salvage,  although  the 
libel  is  joint  against  the  whole  property,  each  claim  is  treated  as  a 
separate  and  distinct  proceeding.  In  form  it  is  joint,  but  in  its 
nature  and  effect  it  is  a  several  suit  of  each  claimant,  upon  which 
there  may  be  a  separate  and  independent  hearing  and  decree.  It 
follows  therefore,  in  such  cases,  that  to  entitle  the  claimants  to  an 
appeal  there  must  be  the  jurisdictional  amount  required  as  to  each 
of  the  claimants.^ 

§  303.  Appeals  in  equity  and  admiralty  cases. — The  Statutes  pro- 
vide for  an  appeal  in  equity  cases  as  follows :  "An  appeal  shall  be 
allowed  to  the  Supreme  Court  from  all  final  decrees  of  any  circuit 
court  or  of  any  district  court,  in  cases  of  equity  and  of  admiralty 
and  maritime  jurisdiction,  where  the  matter  in  dispute,  exclusive  of 
costs,  exceeds  the  sum  or  value  of  [five]  thousand  dollars,  and  the 
Supreme  Court  is  required  to  receive,  hear  and  determine  such 
appeals."^ 

It  will  be  observed  that  the  sum  or  value  of  the  matter  in  contro- 
versy is  the  same  as  in  case  of  writs  of  error,  and  that  the  amount 
in  controversy  is  an  essential  element  of  jurisdiction  on  an  appeal. 
The  decisions  on  this  question  which  we  have  cited  in  presenting  the 
jurisdiction  of  this  court  on  a  writ  of  error  would  be  equally  appli- 
cable in  cases  of  appeals  from  the  decisions  of  the  circuit  courts, 
and  the  district  courts  acting  as  circuit  courts,  in  cases  of  equity, 
and  of  admiralty  and  maritime  jurisdiction. 

An  appeal  can  only  be  taken  in  the  mode  prescribed  and  under 
the  circumstances  provided  for  by  the  statute.  The  conditions 
required  by  the  statute  must  exist,  or  the  Supreme  Court  will  have 
no  jurisdiction  ;  as  even  the  agreement  or  consent  of  parties  will 
not  confer  it.  Its  appellate  power  is  regulated  and  limited  by  the 
statute.^ 

§  304.  Final  decrees. — An  appeal  from  a  decree  of  the  circuit  or 
district  court,  in  cases  of  equity  and  of  admiralty  and  maritime  juris- 

^  Stratton  v.  Jarvis,  8  Pet.  4.  338  ;  Sampson  v.  "Welsh,  24  How.  207. 

"^  Rev.  Stat.  |  692,  as  amended  by  See  also,  as  to  right  to  appeal  in  case 

the  act  of  Feb.  16,  1875,  ch.  77,  ^  3,  of  intervention  and  other  special  cases, 

18  Stat.  316.  Sail  v.  Central  R.  Co.,  93  U.  S.  412  ; 

*  Gruner  w.  United  States,  11  How.  iJx  ;9aHe  Jordan,  94  U.   S.  248;    Ex 

163  ;  The  Lucy,  8  Wall.    307  ;    The  i)arte  Railroad  Co.,  95  U.  S.  221  ;  Day 

Nonesuch,  9  Wall.  505 ;  The  Alicia,  v.  Washburn,  23  How.  309. 
7  Wall.  572 ;  Merrill  v.  Petty,  16  Wall. 


SUPUEME   COURT — APPELLATE   JURISDICTION.  247 

diction, can  only  be  taken  from  a  final  decree.^  But  a  decree  by  con- 
sent is  a  final  one,  from  which  an  appeal  may  be  taken. ^  It  is  mani- 
fest that  any  decree  of  a  circuit  court,  or  of  the  district  court  acting 
as  a  circuit  court,  which  settles  all  the  legal  rights  of  the  parties  in 
a  cause  within  the  pleadings,  and  determines  the  whole  matter  in 
controversy,  is  final,  and  an  appeal  may  be  taken  therefrom.^  One 
who  was  not  a  party  to  the  original  proceeding  cannot  appeal 
unless  he  shows  that  he  has  been  admitted  as  a  party  by  the  express 
order  of  the  court,  or  has  been  treated  as  a  party  to  the  record.* 

§  305.  Illustration. — Where  a  decree  in  admiralty  was  made  that 
a  sum  of  money  was  due,  without  ascertaining  the  amount  of  money 
or  decreeing  its  payment,  it  was  held  that  this  was  not  a  final  decree, 
and  the  appeal  therefrom  was  dismissed  on  that  account.^  But  a 
decree  setting  aside  certain  deeds  as  fraudulent  and  void ;  that 
certain  lands  and  personal  property  should  be  delivered  to  com- 
plainant ;  and  that  an  account  of  profits  should  be  taken ;  and 
further  providing  that  the  bill  be  retained  for  certain  matters 
referred  to  a  master  for  a  report,  and  that  as  to  other  matters  it 
be  dismissed  without  prejudice,  was  held  to  be  a  final  decree  within 
the  meaning  of  the  statute.^  And  a  decree  deciding  the  right  to 
property  in  controversy  and  directing  it  to  be  delivered  by  the 
defendant  to  the  complainant,  and  providing  for  its  immediate 
execution,  but  leaving  some  accounts  to  be  adjusted  in  pursuance 
of  the  decree,  was  held  to  be  a  final  decree  within  the  statute.^ 

§  306.  What  decrees  are  not  final. — If  the  decree  does  not  settle 
the  rights  of  the  parties  to  the  controversy,  nor  substantially  deter- 
mine the  rights  of  the  parties  under  the  pleadings,  it  is  not  a  final 
one  from  which  an  appeal  can  be  taken.  Thus,  no  appeal  can  be 
taken  from  a  decree  for  costs  alone ;  ^  or  from  an  order  refusing  to 
permit  a  person  to  intervene ;  ^  or  from   a  decree  of  the  circuit 

»  McCollum  V.  Eacrer,  2  How.  61;         *  Ex  parte  Cuttina:,  94   U.   S.  14; 

Beebe  v.  Russell,  19  Id.  283;  Craw-  Saije  v.  Central  R.  Co.,  93  Id.  412; 

ford  V.  Points,  13  Id.  11  ;  Craighead  Ex  parte  J  or  dun,  94  Id.  248. 
i>.  Willson,  18  Id.  190.  ^  Montgomery  w.  Anderson,  21  How. 

^  Pacific  Railroad  v.  Ketchum.  101  386. 
U.  S.  289.                                         ■  « Forgay  v.   Conrad,  6    How.  201. 

'  Crosby  v.  Buchanan,  23  Wall.  420  ;  See  also  Michoud  v.  Girod,  4  Id.  503  ; 

Beebe».  Russell,  19  How.  283;  French  Whiting  v.  Bank  of   U.   S.,  13   Pet. 

V.  Shoemaker,  12  Wall.  86  ;  Thompson  15. 

V.  Deem,  7  Id.  343 ;   Marin  v.  Lalley,         '  Thompson  v.  Dean,  7  Wall.  342. 
17  Id.  14;  Butterfield  v.  Usher,  91  U.         ^  Elasti*  Fabric  Co.  v.  Smith,  100 

S.  246;  Sage  v.  Railroad  Co.,  96  Id.  U.  S.  110. 
712;  Fuller  w.  Claflin,  92  Id.  14.  »  Ex  parte  Cutting,  94  U.  S.  14. 


248  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

court,  affirming  a  decree  of  the  district  court,  enjoining  proceedings 
under  a  treasury  warrant  of  distress ;  ^  or  from  an  order  of  the 
circuit  court  refusing  to  release  a  party  on  a  writ  of  habeas  corpus  ;^ 
or  from  an  order  disbarring  an  attorney;^  or  from  an  entry  of  a 
decree  merely  in  pursuance  of  a  mandate;^  or  from  a  decree 
directing  a  defendani  to  execute  a  conveyance  of  certain  property, 
and  referring  the  case  to  a  master  to  take  an  account  of  the  rents 
and  profits;^  or  from  a  decree  declaring  an  assignment  for  the 
benefit  of  creditors  void,  and  referring  the  cause  to  a  master  ta 
take  an  account  of  the  property  ;  ®  or  from  a  decree  for  the  sale  of 
property  to  enforce  a  lien,  which  does  not  ascertain  the  property 
nor  the  amount  of  the  debt;^  or  from  a  decree  dissolving  an 
injunction  without  dismissing  the  bill;^  or  from  an  order  refusing 
to  set  aside  a  decree;^  or  from  a  decision  upon  an  application  to 
set  aside  a  decree  and  permit  a  party  to  except  to  a  master's 
report;^"  or  from  an  order  refusing  to  grant  a  rehearing;"  gr 
from  a  decree  either  maintaining  or  dismissing  a  cross-bill;'^  or 
from  a  decree  upon  a  cross-bill  made  before  the  final  decree  upon 
the  original  bill.'^ 

§  307.  Decisions  illustrating  the  subject. — Where  a  case  in  admi- 
ralty is  appealed  from  the  district  to  the  circuit  court,  the  latter  pro- 
ceeds de  novo,  as  though  no  trial  had  been  had  in  the  district  court, 
and  a  new  decree  is  made.  Hence  the  circuit  court  should  not  make 
an  order  affirming  the  decree  of  the  district  court,  and  if  such  an 
order  is  made  in  such  a  case,  it  is  not  a  final  decree  from  which  an 
appeal  lies  to  this  court.'*  Nor  does  an  appeal  lie  from  a  decision 
upon  a  motion  made  to  dissolve  an  injunction.'^  Nor  does  it  lie 
from  the  decision  of  the  circuit  court,  in  the  exercise  of  its  revisory 
powers,  over  the  decisions  of   registers   in  bankruptcy  relating  to 

1  United  States  v.  Nourse,  6  Pet.  470.  »  Brockett  v.  Broekett,  2  How.  238  : 

'^  In  re  Philip  Henrich,  5   Blatch.  Wvlie  v.  Ooxo,  14  Id.   1  ;    McMickin 

414.  V.  Perin,  18  Id.  507. 

^  Ex  parte  Robinson,  19  Wall.  513.  ^^  Torry  v.  Commercial  Bank,  92  U. 

*  United  States  iJ.  Fremont,  18  How.  S.  454. 

30;  Corning  v.  Troy  Iron,  etc.,  Fac-  "  Canibuston  v.  United  States,  95 

tory,   15    Id.    451  ;    United    States   v.  U.  S.  285. 

Fossalt,  21  Id.  445.  ^^  Ayers  v.  Carver,  17  How.  591. 

°  Beebe  v.  Russell,  19  How.  283.  ^^  Ex  parte  Railroad  Co.,  95  U.  S. 

«  Pullian  V.  Christian,  6  How.  209.  221 . 

■'  Railroad  Co.  v.  Swasey,  23  Wall.  "  The  Lucille,  19  Wall.  73. 

405.  ^^  Colluni  V.  Eager,  2  How.  61 ;  Ver- 

*  Hiriat  v.  Ballou,  9  Pet.  156;  den  y.  Coleman,  18  How.  86;  Gibbons 
Thomas  v.  Wooldridge,  23  Wall.  283.  v.  Ogden,  6  Wh.  448. 


SUPREME    COURT — APPELLATE   JURISDICTION.  249 

the  adjustment  of  priorities  of  creditors  and  conflicting  interests  in 
a  bankrupt's  estates,  taken  on  appeal  to  the  circuit  court,  under  the 
provisions  of  the  late  Bankrupt  Act.' 

We  have  observed  that  on  appeal  from  the  district  court  in  admi- 
ralty to  the  circuit  court,^  that  court  must  render  a  judgment  as 
though  the  suit  had  been  instituted  in  that  court.  The  same  is  true 
in  case  of  appeals  from  the  decisions  of  the  district  court  sitting  in 
equity,  or  where  the  circuit  court  reviews  the  decision  of  a  district 
court  on  the  law  side  of  it  by  a  writ  of  error. ^  Hence,  where  there 
was  a  decree  in  the  circuit  court  reversing  a  decree  for  the  foreclos- 
ure of  a  mortgage  in  the  district  court,  and  remanding  the  case  to 
the  latter  court,  this  was  held  not  a  final  decree,  from  which  an 
appeal  could  be  taken  to  this  court.^ 

But  where  an  order  was  made  for  the  sale  of  real  estate,  and 
afterwards  a  decree  was  made  confirming  the  sale,  it  was  held  that 
an  appeal  lay  from  this  final  decree.^ 

Where  there  was  a  decree  in  chancery  in  the  circuit  court,  in 
which  there  was  a  reference  to  a  master  to  ascertain  the  amount  of 
damages  sustained  by  the  plaintiff  for  an  infringement  of  a  patent 
right  by  the  defendant,  and  the  decree  perpetually  enjoined  the  fur- 
ther use  of  it  by  the  defendant,  but  did  not  decree  the  payment  of 
costs,  they  and  all  other  questions  in  the  cause  being  reserved  until 
the  coming  in  of  the  report  of  the  referee,  it  was  held  that  this  was 
not  a  final  decree  from  which  an  appeal  would  lie  to  this  court.® 

The  decree  must  be  filed  in  order  to  give  jurisdiction  on  appeal. 
Therefore  where  a  decree  was  made  in  admiralty  that  a  sum  of 
money  was  due,  but  the  amount  was  not  determined  at  the  time  of 
the  appeal  and  no  order  made  for  its  payment,  it  was  held  on  appeal 
that  this  was  not  a  final  decree  from  which  an  appeal  could  be 
taken,  and  that  it  could  not  be  cured  by  any  amendment  in  the 
Supreme  Court.'^     But  where  a  decree  decided  the  rights  of  litigants 

1  Hallu.  Allen,  12  Wall.  452.  712;    Butterfield  v.   Usher,  91   U.  S. 

'  See  section  631  of  the  R<  v.  Stat.  247 

^  See  section  632  of  the  Rev.  Stat.  *  Bernard  v.  Gibson,  7  How.  650. 

■*  Moore  v.  Robins,   18   Wall.  "588;  Suits  at  law  can  only  be  broujj;ht  to 

Davis  «.  Crouch,  94  U.  S.  514.      See  the  Supreme  Court  by  a  writ  of  error, 


and  not  by  appeal :    Sarchet  v.  United 
States,  12  Pet.  143  ;    Parish   v.    Elfis, 
16  Pet.  451  ;   United    States  v.  Good- 
Pepper  V.  Dunlap,  5  How.  51  ;  Tracy     win,  7  Cr.  108. 
f.  Holcomb,  24  How.  426.  '  Montgomery^.  Anderson,  21  How. 

^  Sage  V.   Railroad   Co.,  96   U.   S.     336. 


also  Zeller  v.  Switzer,  91  U.  S.  487 
Parcels  v.  Johnson,  20  Wall.  653 
Brown  v.   Union   Bk.,   4    How.  465 


250  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

to  the  property  in  controversy,  and  entitled  the  complainant  to  have 
it  carried  into  execution,  but  left  certain  accounts  to  be  adjusted 
between  the  parties  in  pursuance  of  the  decree,  this  was  held  to  be 
appealable.^  So  a  decree  entered  at  chambers  for  the  foreclosure  of 
a  mortgage  and  a  sale  of  the  mortgaged  property  pursuant  to  a 
power  contained  in  a  mortgage  importing  a  confession  of  judgment 
on  non-payment,  and  under  a  proceeding  in  Louisiana  called  "  exec- 
utory process,"  was  held  to  be  a  final  decree  and  appealable.^  So 
where  a  decree  was  made  setting  aside  certain  deeds  as  fraudulent 
and  void,  and  that  certain  lands  and  slaves  be  delivered  up  to  the 
complainant,  and  that  the  master  should  take  and  report  an  account 
of  the  rents  and  profits  of  the  lands  and  slaves  and  of  certain 
money  and  notes,  retaining  the  bill  for  this  latter  purpose,  this  was 
held  to  be  a  final  decree  from  which  an  appeal  could  be  taken,  as 
the  determination  of  the  question  of  title  to  the  land  and  slaves 
was  a  final  one  within  the  meaning  of  the  statute.^ 

But  appeals  cannot  be  taken  from  merely  interlocutory  orders;* 
or  from  the  decision  of  a  court  as  to  the  terms  on  which  an  amend- 
ment will  be  allowed  on  sustaining  a  demurrer  to  a  bill;^  or  from 
the  decision  of  a  court  adjusting  priorities  and  conflicting  interests 
in  a  bankrupt's  estate ;  ^  or  from  a  decree  reversing  a  decree  in  the 
court  below  for  the  foreclosure  of  a  mortgage  and  remanding  the 
cause  back  for  a  new  trial.'^ 

Where  there  is  an  appeal  from  the  district  to  the  circuit  court  in 
an  admiralty  case  the  decree  of  the  former  is  practically  vacated, 
and  the  proceeding  in  the  later  is  de  novo,  as  though  no  trial  had 
been  in  the  district  court,  and  a  new  decree  should  be  made. 
Therefore  a  decree  of  the  circuit  court  in  such  a  case  merely  affirm- 
ing the  decree  of  the  district  court  is  not  such  a  decree  as  should 
be  rendered,  and  an  appeal  therefrom  cannot  be  taken.^     But  an 

1  Thompson  v.  Dean,  7  Wall.  342.  ^  Forgay  v.  Conrad,  6  How.  201. 
But  a  decree  awarding  a  permanent  *  Forgay   v.   Conrad,   6   How.   201. 
injunction  to  restrain  infringements  of  See  also  ^x  parte  Cutting,   94  U.  S. 
a  patent,  and  for  an  account  and  a  14. 

reference  to  a  master  to  take  and  state        ^  Sheets  v.  Seldon,  7  Wall.  416. 
the  same  and  report  thereon,  was  held         *  Hall  v.  Allen,  1 2  Wall.  452  ;   Mor- 

not  to  be  appealable:    Humiston   v.  gan  v.  Thornhill,  11  Wall.  65;  Mead 

Stanthorp,  2  Wall.  106;   Bernard  v.  v.  Thompson,  15  Wall.  635. 
Gibson,  7  How.  650.  '  Moore  v.  Robbins,  18  Wall.  588; 

2  Marin  v.  Lalley,  17  Wall.  14.  See  Tracy  v.  Holcomb,  24  How.  426  ; 
also    Bronson  v.  Railroad  Company,  Brown  v.  Union  Bank,  4  How.  465. 

2  Black  524  ;  Whiting  v.  Bank  of  tl.  »  ^he  Lucille,  19  Wall.  73.  See 
S.,  13  Pet.  15.  ante,  I  307. 


SUPREME   COURT — APPELLATE    JURISDICTION.  251 

appeal  will  lie  from  a  decree  of  the  circuit  court  confirming  a  sale 
made  by  its  previous  order,  and  which  disposes  of  the  whole  matter 
of  the  suit.^ 

§  308.  Time  for  review  limited. — The  time  within  which  a  writ  of 
error  may  be  prosecuted  or  an  appeal  taken  in  a  civil  action  at  law 
or  in  equity  is  limited  to  two  years  after  the  entry  of  the  judgment, 
decree  or  order,  except  where  the  party  entitled  to  prosecute  a  writ 
of  error  or  to  take  an  appeal  is  an  infant,  or  insane,  or  imprisoned, 
in  which  case  the  writ  may  be  prosecuted  or  the  appeal  taken 
within  two  years  after  the  judgment,  decree  or  order  is  entered, 
exclusive  of  the  term  of  such  disability.^  The  writ  of  error  must 
be  brought  or  the  appeal  taken  within  two  years,  except  in  the 
cases  above  stated;  and  a  writ  of  error  is  not  brought,  within  the 
meaning  of  the  statute,  until  it  is  filed  in  the  court  where  the  judg- 
ment, decree  or  order  was  entered.  It  is  not  sufficient  that  the  writ 
is  tested  or  issued  within  the  time  limited,  but  all  the  steps  necessary 
for  the  perfecting  of  the  right  to  a  writ  or  an  appeal,  on  the  part  of 
the  party  desiring  a  review  of  the  decision,  must  be  taken.^  The  lan- 
guage of  the  section  of  the  Revised  Statutes  just  cited  is  that  "no 
judgment,  decree  or  order  of  a  circuit  or  district  court  in  any  civil 
action  at  law  or  in  equity  shall  be  reviewed  in  the  Supreme  Court 
on  writ  of  error  or  appeal,  unless  the  writ  of  error  is  brought  or  the 
appeal  taken  within  two  years  after  the  entry  of  such  judgment, 
decree  or  order,"  etc.  The  entry  of  a  "judgment,  decree  or 
order"  here  referred  to  has  been  construed  to  mean  such  a  one  as 
substantially  disposes  of  the  whole  case,  and  not  a  mere  preliminary, 
discretionary  or  incidental  judgment,  or  an  interlocutory  order  or 
decree,  which  does  not  thus  dispose  of  the  matter  in  controversy.* 

§  309.  "Want  of  jurisdiction  apparent  of  record. — If  it  is  apparent 
on  the  record  that  this  court  has  no  jurisdiction  of  an  appeal,  it 
will  dismiss  it  without  any  motion  for  that  purpose,  and  even  if  both 
parties  should  oppose  it ;  ^  and  in  such  a  case  an  appellant  may  of 

'  Sao;e  v.  Railroad  Company,  96  U.  durinc;  its  continuance:  The  Protect- 

S.    712;    Blossom    v.   Railroad    Com-  or,  9  Wall.  687. 

pany,     1     Wall.   655 ;    Butterfield    v.  *  Forgay  v.  Conrad,  6    How,  201  ; 

Usher,  91  U.  S.  246.  Whitney  v.  Bank  of  U.  S.,  13  Pet.  15  ; 

^  Rev.  Stat.  §  1U08.  Michoud  v.  Girod,  4  How.  503. 

'Brooks  V.   Norris,    11    How.  204,  *  See  a?i^e,  ^  358  ;  Gruner  j;.  United 

Objection   may  be   taken   by  motion:  States,    11    How.    163;    Sampson    v. 

Id.     A  rebellion  in  the  state  where  Welsh,  24  How.  207;    The  Lucy,  8 

the  court  sits  suspends  the  limitations  Wall.  307  ;  Merrill  v.  Petty,  16  Wall. 

338, 


252  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

course  have  it  dismissed  on  motion  therefor,  even  though  it  be 
resisted  by  the  appellee.^  And  where  the  Supreme  Court  has  once 
reviewed  a  case,  and  a  mandate  has  been  issued  and  a  judgment 
entered  in  the  circuit  court  in  accordance  with  such  mandate,  an 
appeal  therefrom  will  be  dismissed  with  costs,  on  motion  of  the 
appellee,  as  a  matter  of  course.^  If  an  appeal  has  been  once  dis- 
missed, it  cannot  be  redocketed  without  a  new  appeal;^  and  if  an 
appeal  is  not  allowed  in  open  court  at  the  term  at  which  it  was 
rendered,  it  will  be  dismissed,  where  no  citation  has  been  issued 
and  the  appellee  does  not  appear.* 

§  310.  Right  of  the  appellant  to  dismiss  an  appeal. — An  appellant 
has  the  right  to  dismiss  his  appeal,  and  this  right  could  be  exercised 
at  any  time  before  the  submission  of  the  cause,  unless  the  adverse 
party  should  also  appeal ;  and  even  though  resisted  by  the  other 
side.^ 

§  311.  -When  dismissed  of  course. — If  an  appeal  is  not  allowed 
in  open  court  at  the  term  at  which  the  decree  was  rendered,  and  no 
citation  has  been  issued,  the  appeal  will  be  dismissed,  even  though 
the  appellee  does  not  appear;^  and  the  appeal  from  a  decree  of  the 
circuit  court  entered  in  accordance  with  a  mandate  of  this  court 
will  of  course  be  dismissed  on  motion  of  the  appellee,  as  the  matter, 
having  once  been  determined  by  the  court,  could  not  be  reheard  and 
redetermined  in  this  way/ 

§  312.  Revie-w  of  decisions  on  certificate  of  division. — IhlS 
court  has  further  power  to  review  the  final  judgments  or  decrees  of 
the  circuit  courts  in  any  civil  suit  or  proceeding  before  them  which 
was  held  by  a  circuit  justice  and  a  circuit  judge  or  a  district  judge, 
wherein  the  said  judges  certify,  as  provided  by  law,  that  their 
opinions  were  opposed  upon  any  question  which  occurred  on  the 
trial  of  said  suit  or  proceeding.  In  such  a  case  the  judgment  or 
decree  may  be  affirmed,  reversed  or  modified  by  the  Supreme  Court, 
on  writ  of  error  or  appeal,  according  to  the  nature  of  the  case,  and 
subject  to  such  provisions  of  the  law  as  are  applicable  in  other 
cases  of  writs  of  error  or  appeals,  in  regard  to  bail  and  supersedeas.^ 

1  Latham's  Appeal,  9  Wall.  145.  '  Stewart  v.  Salamon,  97  U.  S.  361. 

^  Stewarts.  Salamon,  97  U.  S.  361.  A  cause  dismissed  under   a  rule  of 

^  Rogers  v.  Law,  21  How.  526.  court  cannot,  at  a  subsequent  term, 

*  Vansant  v.  Gaslight  Co.,  99  U.  S.  be  redocketed  without  a  new  appeal : 

213.  Rogers  v.  Law,  21  How.  526. 

»  Latham's  Appeal,  9  Wall.  145.  »  Rev.   Stat.   ?  693.     See  also  Rev. 

«  Vansant  v.  Gaslight  Co.,  99  U.  S.  Stat,  g  652. 

213. 


SUPREME    COURT — APPELLATE    JURISDICTION.  253 

It  is  further  provided  :  "  When  any  question  occurs  on  the  hear- 
ing or  trial  of  any  criminal  proceeding  before  a  circuit  court,  upon 
which  the  judges  are  divided  in  opinion,  and  the  point  upon  which 
they  disagree  is  certified  to  the  Supreme  Court  according  to  law, 
such  point  shall  be  finally  decided  by  the  Supreme  Court ;  and  its 
decision  and  order  in  the  premises  shall  be  remitted  to  such  circuit 
court,  and  there  entered  of  record,  and  shall  have  effect  according 
to  the  nature  of  the  said  judgment  and  order."  ^ 

It  is  further  provided  in  such  cases  that  imprisonment  shall  not 
be  allowed  or  punishment  inflicted  where  the  judges  are  divided  in 
opinion  upon  the  question  touching  the  imprisonment  or  punish- 
ment.^ This  would,  of  course,  be  limited  to  the  time  when  this 
court  should  determine  the  question. 

§  313.  The  specific  point  of  law  must  be  stated. — By  section  652 
of  the  Revised  Statutes,  relating  to  the  same  subject  in  civil  cases, 
it  is  provided  that  where  "any  question  has  occurred  upon  which  the 
opinions  of  the  judges  were  opposed,  the  point  upon  which  they  so 
disagreed  shall,  during  the  same  term,  be  stated  under  the  direction 
of  the  judges  and  certified,  and  such  certificate  shall  be  entered  of 
record." 

Under  the  provisions  of  these  sections  it  has  been  held  neces- 
sary to  state  the  particular  point  of  disagreement.  It  is  not  suf- 
ficient to  certify  that  the  judges  were  divided  in  opinion  as  to  which 
party  was  entitled  to  a  decree;^  nor  that  they  disagreed  pro  fortna 
in  order  to  take  the  opinion  of  this  court  ;^  but  there  must  be  an 
actual  division  of  opinion  upon  a  question  of  law  duly  certified.  It 
must  arise  during  the  trial  of  a  cause,  and  not  be  a  mere  incidental 
or  collateral  question  arising  after  the  judgment  or  decree.^  This 
court  will  not,  as  a  general  rule,  consider  several  questions  that  arose 
at  different  stages  of  the  trial  and  relate  to  independent  points.® 
But  where  the  several  questions  require  an  opinion  virtually  and 
substantially  on  one  point,  and  this  is  shown  by  the  questions  pre- 

'  Rev.  Stat.  §  697.  ^  Daniels  v.  Kailroad  Company,  3 

^  Rev.  Stat.  I  651.  Wall.  250. 

■'  Sadler    v.    Hover,    7    How.   646 ;  «  United  States  v.  Bailey,  9  Pet.  267  ; 

Wolf  V.  Usher,  3  Pet.  269.  Nesmith  v.  Sheldon,  6  How.  43  ;  White 

*  Webster  y.  Cooper,    10  How.  54 ;  v.  Turk,  12  Pet.  238;  United  States 

Nesmith    v.    Sheldon,    6    How.    41;  v.  Stone,    14  Pet.  524;    Saunders  v. 

United  States  w.  Stone,   14  Pet.  524.  Gould,  4  Pet.  392  ;  Grant  ».  Raymond, 

But  see  an  exception,  Jones  v.  Van  6  Pet.  218. 
Zant,  5  How.  224. 


254  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

sented,  and  the  decision  of  this   one   may  dispose  of  all  of  them, 
this  court  will  decide  the  point.' 

If  a  certificate  of  division  is  brought  to  this  court,  only  the 
points  certified  are  before  the  court ;  and  the  cause  may  be  pro- 
ceeded with  in  the  circuit  court,  in  its  discretion,  as  though  no 
certificate  had  been  sent  up  ;^  and  the  determination  of  the  question 
here  does  not  affect  the  right  to  bring  up  the  case  by  appeal  or  writ 
of  error,  after  the  case  has  been  determined  in  the  court  below. ^ 

§  314.  The  question  must  be  one  of  la'wr  and  not  of  discretion. — 
The  particular  points  of  difference  in  opinion  should  be  clearly  and 
distinctly  presented,  and  these  must  involve  questions  of  law  and 
not  of  fact,*  and  not  matters  which  rest  solely  in  the  discretion  of 
the  court  below  ;^  and  the  authority  of  the  Supreme  Court  in  such 
cases  is  strictly  limited  to  the  precise  questions  thus  presented.^ 

But  the  court  will,  as  we  have  noticed,  entertain  jurisdiction 
even  where  the  division  of  opinion  arises  on  a  preliminary  motion, 
if  it  involves  the  merits  of  the  case,  and  several  questions  may  be 
certified  up  if  they  involve  substantially  one  point  and  arose  at  one 
time.''  But  it  is  otherwise  if  they  arose  at  diflferent  stages  of  the 
trial  and  relate  to  independent  matters.  And  the  court  will  not 
take  cognizance  of  a  cause  upon  a  certificate  of  division  where  the 
whole  case  has  been  sent  up  for  the  opinion  of  this  court.^  Appro- 
priate forms  for  certificates  of  division  in  criminal  cases  may  be 
found  post,  No.  195 ;  in  civil  cases,  No.  259. 

§  315.  Certificate  of  division  in  criminal  cases. — The  same  general 
principles  of  construction  are  applicable  in  cases  of  certificates  of 
disagreement  in  criminal  cases,  under  section  G97  of  the  Revised 
Statutes,  as  under  section  693  in  civil  cases. 

In  such  cases  this  court  will  not  act  upon  a  certificate  of  division 

^  United  States  v.  Chicago,  7  How.  Smith  v.  Vaughn,  10  Pet.  366  ;  Packer 

185-,   Leland   v.  Wilkinson,    10   Pet.  f.  Nixon,  10  Pet.  411  ;  Davis  j;.  Bra- 

294.  den,  10  Pet.  288. 

^Kennedy  v.   Bank   of  Georgia.  8  *Ward   v.    Chamberlain,   2    Black 

How.  5S6.                                           '  430. 

^  Ogle   V.    Lee,    2   Cr.   33 ;   United  ">  United  States  v.  City  of  Chicago, 

States  V.  Stone,  12  Pet.  524.  7  How.  185;  Leland  v.  Wilkinson,  10 

*  Dennistoun  v.  Stewart,  17    How.  Pet.  294. 

565;  Kennedy  u.  Bank,  8  How.  610;  *  United    States   v.   Bailey,  9    Pet. 

United  States  «.  City  Bank,  19  How.  267;    White   v.    Turk,  12  Pet.    238; 

385  ;  Daniels  v.  Railroad  Company,  3  United  States  v.  Stone,   14  Pet.  524  ; 

Wall.  250;  Silliman  v.  Hudson  River  Saunders  v.  Gould,  4  Pet.  392;  Grant 

Company,  1  Black  582.  v.  Raymond,  6  Pet.  218;    Nesmith  v. 

^Wiggins  V.   Gray,  24  How.  303;  Sheldon,  6  How.  43. 


SUPREME    COURT APPELLATE    JURISDICTION.  255 

on  a  motion  for  a  new  trial, ^  or  to  quash  an  indictment,'  or  to  dis- 
miss the  prosecution  for  want  of  jurisdiction  of  the  court,^  or  on  a 
demurrer  containing  several  grounds  of  objection,*  or  on  a  motion 
to  instruct  the  jury,  that  the  evidence  did  not  conduce  to  establish 
the  offence  under  which  the  indictment  was  framed,  where  the  whole 
case  is  transferred  to  this  court. ^ 

The  reason  for  the  rule  in  the  latter  case  will  be  manifest  when 
it  is  considered  that  this  court,  in  such  a  case,  would  be  called  to 
pass  upon  the  law  and  the  facts  of  the  case ;  and  if  against  the 
prisoner  it  might  be  brought  again  to  this  court  on  a  writ  of  error, 
for  a  reconsideration  of  the  same  question.  But  on  a  point  relat- 
ing to  a  motion  in  arrest  of  judgment,  this  court  will  take  juris- 
diction of  a  certified  division  of  opinion,  as  it  is  a  question  arising 
during  the  trial.* 

For  form  of  certificates  of  division,  see  post,  Nos.  195,  259. 

§  316.  When  the  Supreme  Courtis  divided  in  opinion. — If  there 
are  questions  duly  certified  to  this,  court  on  a  division  of  opinion 
of  the  judges  of  a  circuit  court,  and  the  judges  of  this  court  are 
also  divided  in  opinion  upon  the  questions  presented,  the  case  will 
be  remitted  to  the  circuit  court  for  such  further  action  as  may  be 
required  by  law  and  the  rules  of  such  court.  If  there  are  several 
questions,  and  one  of  them  relates  to  the  jurisdiction  of  the  court 
below,  this  will  be  first  determined  ;  for  if  determined  against  its 
jurisdiction,  it  would  dispose  of  the  others.  If  a  cause  is  remitted 
in  such  a  case  it  is  the  established  rule  for  the  court  below  to  dis- 
miss the  cause,  and  a  decree  or  judgment  to  that  effect  should  be 
entered,  so  that  the  aggrieved  parties  may,  if  they  desire,  bring  the 
questions  to  this  court  for  review,  by  appeal  or  writ  of  error,  as  the 
case  may  require.^ 

§  317.  Appeals  in  prize  causes. — It  is  provided  by  section  695  of 
the  Revised  Statutes  as  follows :   "  An  appeal  shall  be  allowed  to 

^  United  States  v.  Daniel,  6  Wh.  542.  '  Silliman  v.  Hudson  River  Bridge 

*  United  States  v.  Rosenbur;ih,  7  Co.,  1  Black  582;  Hannaur  d.  Wood- 
WaH.  580;  United  States  v.  Wilson,  ruff,  10  Wall.  482.  The  jurisdiction 
7  Pet.  150;  United  States  w.  Reid,  12  in  such  cases  is  not  limited  by  the 
How.  361.  amount  in  controversy  :  Dow  v.  John- 

»  United  States  v.  Avery,  13  Wall,  son,  100   U.    S.   158.     A  division   of 

251.  opinion    between    a  judge,    associate 

*  United  States  v.  Brig^s,  5  How.  justice  and  a  circuit  judge  may  be 
208  ;  United  States  v.  Bradley,  9  Pet.  taken  up  on  a  certificate  of  division 
267.  of  opinion  :  Insurance  Co.  v,  Dunham, 

*  United  States  v.  Bailey,  supra.  11  Wall.  1  ;   Weyauwega  v.  Ayling, 
«  United  States  o.  Tyler,  7  Cr.  284.       99  U.  S.  112. 


266  FEDERAL  PLEADING,  PRAmCE  AND  PROCEDURE. 

the  Supreme  Court  from  all  final  decrees  of  any  district  court  in 
prize  causes,  where  the  matter  in  dispute,  exclusive  of  costs,  exceeds 
the  sum  or  value  of  five  thousand  dollars,  and  shall  be  allowed 
Avithout  reference  to  the  value  of  the  matter  in-  dispute  on  the  cer- 
tificate of  the  district  judge  that  the  adjudication  involves  a  question 
of  general  importance.  And  the  Supreme  Court  shall  hear  and 
determine  such  appeals,  and  shall  always  be  open  for  the  entry 
thereof." 

We  have  seen  that  under  the  preceding  provisions  of  the  statutes 
for  allowing  writs  of  error  and  appeals  the  decision  must  be  final 
and  dispose  of  the  whole  matter  so  far  as  the  appellant  is  con- 
cerned.^ Where  the  United  States  filed  several  libels  for  condem- 
nation, as  prize  of  war,  of  a  large  quantity  of  cotton  and  other 
captured  property,  and  on  motion  these  were  consolidated  and 
various  claims  were  interposed  in  the  consolidated  suit  for  portions 
of  the  libelled  property,  among  which  was  one  by  parties  who  de- 
nied the  validity  of  the  capture  and  insisted  on  the  title  and  the 
right  to  a  portion  of  the  cotton,  but  upon  the  hearing  in  the  district 
court  an  order  was  made  dismissing  the  claims  with  costs,  and  the 
claimants  appealed  therefrom,  it  was  held,  upon  a  motion  to  dismiss 
the  appeal  in  this  court  on  the  ground  that  the  decree  was  not  final, 
that,  so  far  as  these  appellants  and  the  United  States  were  con- 
cerned, it  was  a  final  judgment,  leaving  nothing  to  be  litigated  be- 
tween them,  and  that  the  court  had  jurisdiction  thereof.^ 

§  318.  Time  of  appeal  in  prize  cases. — In  prize  cases  the  time  for 
appeals  is  more  limited.  The  statute  provides  in  such  cases  as 
follows  :  "  Appeals  in  prize  causes  shall  be  made  within  thirty  days 
after  the  rendering  of  the  decree  appealed  from,  unless  the  court 
previously  extends  the  time,  for  cause  shown  in  the  particular  case  ; 
2^rovided,  that  the  Supreme  Court  may,  if  in  its  judgment  the 
purposes  of  justice  require  it,  allow  an  appeal  in  any  prize  cause, 
if  it  appears  that  any  notice  of  appeal,  or  intention  to  appeal,  was 
filed  with  the  clerk  of  the  district  court  within  thirty  days  next 
after  the  rendition  of  the  final  decree  therein."^ 

'  See  ante,  ?|  295,  304.  Id.  91.  A  technical  objection  will  not 

'■'  Withenbury   v.  United    States.   5  be  entertained  in  this  court,  where  it 

Wall.  819;  The  Admiral,  3  Id.  (5U3.  is    not   raised    in   the   court   below: 

Where  this  court  will  remand  a  cause  Jecker  v.  Montgomery,  18  How.  111. 
t^)  the  district  court,  see  United  States        ^  Rev.  Stat.  §  1009  ;    The  Neustra 

r.  Weed,  6  Wall.  62;  The  Watchful,  Senora  de  Regla,  17  Wall.  29. 


SUPREME    COURT — APPELLATE   JURISDICTION.  257 

The  statute  further  provides  that  "  appeals  from  the  circuit  courts, 
and  district  courts  acting  as  circuit  courts,  and  from  district  courts 
in  prize  causes,  shall  be  subject  to  the  same  rules,  regulations  and 
restrictions  as  are  or  may  be  prescribed  in  law  in  cases  of  writs  of 
error."' 

§  319.  Appeals  cannot  be  taken  in  the  name  of  a  steamboat  or  a 
partnership. — An  appeal  must  be  taken  in  the  name  of  some  person. 
An  inanimate  object,  like  a  steamboat  or  other  vessel,  has  no 
capacity  to  prosecute  legal  proceedings  or  to  take  an  appeal,  even 
where  the  proceedings  are  in  admiralty  and  in  rem? 

Nor  can  an  appeal  be  taken  in  a  partnership  name  where  the 
record  does  not  set  forth  the  names  of  the  parties  to  it.  The  doc- 
trine is  the  same  in  this  respect  whether  the  proceeding  is  by  writ 
of  error  or  appeal,  or  in  equity,  admiralty  or  prize  cases.  In  all 
these  cases  the  names  of  the  individual  parties  to  the  suit  or  pro- 
ceeding must  be  stated,  and  where  the  interest  is  joint,  as  we  have 
already  seen,  all  those  on  the  same  side  must  join  in  the  appeal. 
Where  in  admiralty  the  appeal  was  taken  by  and  in  the  name  of 
"William  A.  Freeborn  &  Co.,"  this  court,  on  motion  to  dismiss  for 
want  of  jurisdiction,  sustained  the  motion  and  refused  to  allow  the 
appellant  to  amend  the  petition  of  appeal,  citation,  bond  or  the 
libel.^  So  where,  in  a  writ  of  error,  the  parties  were  described  as 
Holliday  et  al.  v.  Boston  et  al.,  the  same  rule  was  applied.* 

§  320.  Writs  of  error  and  appeals,  •without  reference  to  amount. 
— Section  699  of  the  Revised  Statutes  provides :  "A  writ  of  error 
may  be  allowed  to  review  any  final  judgment  at  law,  and  an  appeal 
shall  be  allowed  from  any  final  decree  in  equity  hereinafter  men- 
tioned, without  regard  to  the  sum  or  value  in  dispute : 

"  First.  Any  final  judgment  at  law  or  final  decree  in  equity  of  any 
circuit  court,  or  of  the  supreme  court  of  the  District  of  Columbia,, 
or  of  any  territory,  in  any  case  touching  patent  rights  or  copy- 
rights. 

^^S^cotid.  Any  £nal  judgment  of  a  circuit  court,  or  of  any  district 

1  Rev.    Stat.    ^    1012;    Yeaton    v.  Williams,  22  How.  87 ;  Williams  z?. 

Lenox,  7  Pet.  220 ;  The  Protector,  11  Bank,  11  Wh.  414. 

Wall.  82.  *  Holliday  v.  Boston,  4  How.  645, 

^  Steamboat  Burns,  9  Wall.  237.  See  also  Deneale  v.  Stump,  8  Pet.  526  ; 

3  The  Protector,  11  Wall.  82.      See  Wilson  v.  The  Life  and  Trust  Ins.  Co.. 

also   Smith   v.    Clark,    12  How.    21;  12  Pet.  140;  Davenport  v.  Fletcher, 

Owings   V.   Kincannon,   7    Pet.  399;  16  How.  142. 
Porter  w.  Foley,  21  How.  393 ;  Hodge  v. 
17 


258  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

court  acting  as  a  circuit  court,  in  any  civil  action  brought  by  the 
United  States  for  the  enforcement  of  any  revenue  law  thereof. 

"  Third.  Any  final  judgment  of  a  circuit  court,  or  of  any  district 
court  acting  as  a  circuit  court,  in  any  civil  action  against  any  officer 
of  the  revenue  for  any  act  done  by  him  in  the  performance  of  his 
official  duty,  or  for  the  recovery  of  any  money  exacted  by  or  paid 
to  him  which  shall  have  been  paid  into  the  treasury. 

^^  Fourth.  Any  final  judgment  at  law  or  final  decree  in  equity  of 
any  circuit  court,  or  of  any  district  court  acting  as  a  circuit  court, 
in  any  case  brought  on  account  of  the  deprivation  of  any  right, 
■privilege  or  immmiity  secured  by  the  Constitution  of  the  United 
States,  or  of  any  right  or  privilege  of  a  citizen  of  the  United 
States. 

^^  Fifth.  Any  final  judgment  of  a  circuit  court,  or  of  any  district 
court  acting  as  a  circuit  court,  in  any  civil  action  brought  by  any 
person  on  account  of  injury  to  his  person  or  property  by  any  act 
done  in  furtherance  of  any  conspiracy  mentioned  in  section  1980, 
title 'Civil  Rights.' 

"Suits  under  this  provision  are  reviewable  by  the  Supreme  Court 
under  the  same  conditions  and  regulations  as  are  now  provided  by 
law  for  the  review  of  other  causes  in  said  court."  ^ 

§  321.  Cases  not  embraced  in  this  statute. — The  first  clause  of  the 
foregoing  section  does  not  cover  the  case  of  a  bill  in  equity  to 
enforce  the  specific  performance  of  a  contract  between  parties 
relating  to  a  patent  right  or  a  copy-right.  And  where  the  suit  is 
brought  to  restrain  the  fraudulent  violation  of  such  a  contract,  this 
court  has  no  appellate  power  under  the  provisions  of  said  clause, 
and  cannot  entertain  jurisdiction  of  a  writ  of  error-  or  appeal  in 
such  a  case  unless  it  is  made  to  appear  that  the  matter  in  contro- 
versy exceeds  five  thousand  dollars.^ 

So  the  second  clause  of  said  section  was  held  not  to  embrace  an 
action  brought  against  a  collector  of  a  port  of  entry  to  recover  back, 
duties  alleged  to  have  been  illegally  exacted  by  him  and  paicf  under 
protest.^  Such  a  case  is  not  within  the  letter  of  this  clause,  which 
provides  only  for  a  review  of  final  judgments  in  civil  actions  brought 

'  Act  of  March  1,  1875,  oh.  114,  I  5,  clause  relates  only  to  cases  which  in- 

18  Stat.  337.  volve   a  construction   of  the   patent 

^  Brown  v.  Shannon,  20  How.  55.  laws  and  the  righfe  of  patentees  under 

See  also  Wilson  v.  Sandford,  10  Id.  99  ;  them  :  Sizer  v.  Many,  16  How.  98. 
Philip  V.  Nock,  13  Wall.  185.     This        »  Mason  v.  Gamble,  21  How.  390. 


SUPREME    COURT — APPELLATE   JURISDICTION.  259 

by  the  United  States.  If  the  suit  is  brought  to  enforce  the  revenue 
laws,  this  court  may  take  cognizance  of  the  cause  on  a  writ  of  error, 
without  regard  to  amount.^ 

The  general  observations  heretofore  made  in  reference  to  the 
nature  and  finality  of  decisions  which  may  be  reviewed  would  be 
equally  applicable  under  the  provisions  of  this  statute.^ 

§  322.  Cases  tried  -without  a  jury  ;  bill  of  exceptions. — It  is  pro- 
vided by  section  649  of  the  Revised  Statutes  that  issues  in  civil 
causes  may  be  tried  in  the  circuit  court  without  the  intervention  of 
a  jury,  whenever  the  parties  or  their  attorneys  of  record  file  with 
the  clerk  a  stipulation  in  writing  waiving  a  jury ;  and  that  the 
finding  of  facts,  whether  general  or  special,  shall  have  the  same 
effect  as  the  verdict  of  a  jury.^  And  section  700  provides  that 
when  such  issues  are  thus  tried,  "  the  rulings  of  the  court  in  the 
progress  of  the  trial  of  the  cause,  if  excepted  to  at  the  time  and  duly 
presented  by  a  bill  of  exceptions,  may  be  reviewed  by  the  Supreme 
Court  upon  a  writ  of  error  or  upon  appeal ;  and  when  the  finding  is 
special,  the  review  may  extend  to  the  determination  of  the  sufficiency 
of  the  facts  found  to  support  the  judgment." 

§  323.  General  and  special  finding  of  facts. — In  case  the  finding 
is  special,  under  the  provisions  of  the  foregoing  section  it  should 
be  of  ultimate  facts  and  not  a  mere  report  of  the  evidence  in  the 
case.  It  must  be  a  finding  of  certain  fact  propositions  which  the 
court  believes  to  be  established  by  the  evidence,  and  not  the  evi- 
dence on  which  those  conclusions  rest.  If  the  finding  is  general,  it 
usually  includes  mixed  questions  of  law  and  fact,  in  which  case  it  is 
conclusive  upon  both ;  and  whether  general  or  special,  it  has  the 
same  effect  as  the  verdict  of  a  jury,  and  consequently  is  conclusive 
of  the  facts  found.  If  there  is  a  general  verdict,  there  can  be  no 
review  in  this  court  except  on  a  bill  of  exceptions  taken  to  the 
ruling  of  the  court  on  some  question  of  law.  But  if  the  verdict  is 
special,  the  question  would  be  presented  by  the  record  whether  the 
facts  thus  found  require  a  judgment  for  the  plaintiff  or  defendant, 

1  Petigrew  v.  United  States,  97  U.  S.  20  How.  198  ;  Jones  v.  Morehead,  1 

385 ;  United    States   v.   Bromley,   12  Wall.  155  ;   Canton  v.  American  Ins. 

How.  88.  Co.,  3  Pet.  307. 

^  See  ante,  |  303,  et  seq. ;  Wilson  v.  ^  This  section  was  not  repealed  by 

Sandford,  10  How.  99.     A  ruling  of  the  act  of  March  3,  1875,  ch.  137,  §  3, 

the  court  on  a  matter  in  its  discretion  18  Stat.  471  ;  Phillips  v.  Moore,  100 

is  not  a  final  decree  within  the  mean-  U.  S.  208. 
ing  of  the  statute :    Dean  v.  Mason, 


260  FEDERAL    PLEADIXa,    PRACTICE    AND    PROCEDURE. 

as  a  matter  of  law,  and  this  court  could  review  it  on  the  record  with- 
out a  bill  of  exceptions.^ 

Although  the  issues  of  fact  in  any  civil  case  may  be  tried  and 
determined  by  the  court  without  the  intervention  of  a  jury,  and 
the  court  may  find  upon  the  facts,  either  general  or  special,  there 
is  nothing  making  it  the  imperative  duty  of  the  court  to  find  either 
way ;  and  if  the  court  chooses  to  find  generally  for  one  side  or  the 
other,  the  losing  party  has  no  redress  on  error  or  appeal,  except  for 
errors  in  the  admission  or  rejection  of  evidence,  duly  excepted  to  at 
the  time  and  brought  before  this  court  by  a  bill  of  exceptions.^ 

To  entitle  a  party  to  a  judgment  on  the  special  findings  of  the 
court,  they  should  cover  all  the  essential  facts,  which  must  exist  and 
concur  to  constitute  a  right  of  recovery.^ 

§  324.  Writ  of  error  upon  an  agreed  case. — It  is  the  well-estab- 
lished  practice  in  this  country,  and  especially  in  the  federal  courts, 
to  take  the  judgment  of  the  court  upon  a  case  stated,  or  an  agreed 
statement  of  facts.  In  such  cases  it  is  usual  for  counsel  represent- 
ing their  clients  to  sign  the  statement,  which  becomes  a  part  of  the 
record  of  a  cause,  and  a  writ  of  error  will  lie  from  a  decision  thereon, 
if  it  is  an  agreement  of  ultimate  facts,  and  not  the  mere  evidence  of 
the  facts.     In  this  respect  it  is  in  the  nature  of  a  special  verdict. 

Like  a  special  verdict,  if  it  is  ambiguous  or  imperfect,  if  it  con- 
tains only  the  evidence  of  facts  and  not  the  facts  themselves,  or 
contains  only  a  part  of  the  facts  in  issue  essential  to  be  shown,*  and 
is  silent  as  to  others,  this  court  will  remand  the  case  for  a  new  trial. ^ 
There  would  in  such  a  case  be  nothing  from  which  the  court  could 

^  Norris  v.  Jackson,  9  Wall.  125;  man,  16  Pet.  176;    United  States  v. 

Burr   V.  Des   Moines   Co.,  1    Id.  99  ;  Kin^,  7  How.  853. 

Insurance   Co.  v.   Tweed,  7   Id.  44;  ^  Smith  d.  Sac  County,  11  Wall.  139. 

Graham    v.    Bayne,    18     How.    62;  See  also  Copelin  v.  Insurance  Co.,  9 

Barnes    v.  Williams,    11    AVh.    415;  Wall.  461  ;  Insurance  Co.  «.  Tweed,  7 

Suydam  v.  Williamson,  2U  How.  432  ;  AVall.  44  ;  Coddington  v.  Richardson, 

Cucullu    i\    Emmerling,    22    Id.    83;  .10  Wall.  516;  Norris  v.  Jackson,  9 

Copelin   v.    Ins.  Co.,    9    Wall.    461;  Wall.  125  ;  Flanders  v.  Tweed,  9  Wall. 

Coddington    v.    Richardson,    10    Id.  425 ;  Jennisons  v.  Leonard,  21  Wall. 

516.  302;   Fleitas  v.   Cockrem,  100  U.  S. 

•''  Dirst   V.    Morris,    14   Wall.    484 ;  301  ;  Gilman  v.  Illinois  &  M.  T.  Co., 

Town  of  Ohio  v.  Marcy,  18  Id.  552;  91  U.  S.  603. 

Insurance  Co.  v.  Folsom,  18  Id.  237;  *  Norris  v.  Jackson,  9   Wall.  125  ; 

Miller  v.  Insurance  Co.,  12  Id.  297  ;  Insurance  Co.  v.  Tweed,  7  Wall.  44. 

Norris  y.  Jackson,  9  Id.  125 ;  Copelin  ^Graham  v.   Bayne,   18  How.  60; 

V.  Insurance  Co.,  Id.  461  ;  Tanered  v.  Prentice  v.  Zane,  8  How.  481  ;  Burr  v. 

Christy,  12- M.  &  W.  323:   Bond  v.  Des  Moines  Co.,  1  Wall.  99. 
Brown,  12  How.  251;   Hyde  v.  Boor- 


SUPREME    COURT — APPELLATE    JURISDICTION.  261 

determine  whether  the  judgment  is  consistent  with  the  facts.  But 
where  the  ultimate  facts  relating  to  the  points  in  issue  are  properly 
admitted  in  the  court  below,  the  judgment  of  the  court  below,  based 
upon  such  stated  case,  may  be  here  reviewed  on  a  writ  of  error,  with- 
out a  bill  of  exceptions.^ 

§  325.  Writs  of  error  and  appeals  from  other  courts. — The  statute 
further  provides  for  the  review  of  final  judgments  of  the  supreme 
court  of  any  territory  except  the  territory  of  Washington,  where 
the  value  of  the  matter  in  dispute,  exclusive  of  costs,  exceeds  one 
thousand  dollars,  in  the  same  manner  and  under  the  same  regulations 
as  the  decisions  of  a  circuit  court  may  be  reviewed  ;  and  that  any 
final  judgment  or  decree  of  the  supreme  court  of  Washington  ter- 
ritory, where  the  value  of  the,  matter  in  dispute  exceeds  two  thou- 
sand dollars,  exclusive  of  costs,  may  be  reviewed  in  like  manner,  in 
any  case  where  the  Constitution  or  a  statute  or  treaty  of  the  United 
States  is  brought  in  question.^  And  such  appeal  or  writ  of  error 
may  be  taken  within  the  time  and  in  the  manner  provided  by  law, 
although  such  territory  may  have  been  admitted  as  a  state  after  the 
judgment  or  decree  was  rendered;  and  the  Supreme  Court  is  re- 
quired to  direct  the  mandate  in  such  cases  to  such  court  as  the 
nature  of  the  case  requires.^ 

"  When  any  territory  is  admitted  as  a  state,  and  a  district  court 
is  established  therein,  the  said  district  court  shall  take  cognizance  of 
all  cases  which  were  pending  and  undetermined  in  the  superior  court 
of  such  territory,  from  the  judgments  or  decrees  to  be  rendered  in 
which  writs  of  error  could  have  been  sued  out  or  appeals -taken  to 
the  Supreme  Court,  and  shall  proceed  to  hear  and  determine  the 
same."* 

In  such  cases  the  judgments  or  decrees  of  the  district  court  may 
be  reviewed  in  this  court  on  writs  of  error  or  appeal,  in  the  same 
manner  and  with  the  same  effect  as  if  such  judgments  or  decrees 
had  been  rendered  in  the  superior  court  of  such  territory  ;  and  man- 
dates and  writs  necessary  to  the  exercise  of  appellate  jurisdiction  in 

^  Stimpson   v.   Raih'oad,    10    How.  ^  Rev.  Stat.  §  V03.     The  provisions 

.329;  United  States  v.  Eliason,  16  Pet.  of  these  sections  were  extended  to  the 

291 ;   Ingle  v.  Coolidge,  2  Wh.  363  ;  territory  of  Utah,  by  an    act  of  June 

Miller     v.    Nichols,     4     Wh.     311;  23,  1874,  IS  Stat.  254.     See  also  Rev. 

Shankland  v.  Washington,  5  Pet.  390.  Stat,  g  704. 

^  Rev.  Stat.  |  702,  as  amended  by  *  Rev.  Stat.  I  ■")C>9.     See  also  §|  567, 

act  February  27,  1877,  ch.  69,  19  Stat.  568. 
241.    See  also  Rev.  Stat.  §§  1909,  1911. 


262  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

such  cases  must  be  directed  to  such  district  judge,  who  is  required 
to  obey  the  same.^ 

In  like  manner  may  the  final  judgments  or  decrees  of  the  supreme 
court  of  the  District  of  Columbia  be  reviewed,  and  under  the  same 
regulations  as  are  provided  in  cases  of  writs  of  error  or  appeals 
from  circuit  courts,  where  the  value  of  the  matter  in  controversy, 
exclusive  of  costs,  exceeds  the  sum  of  twenty-five  hundred  dollars." 

If,  however,  in  the  latter  case  the  value  of  the  matter  in  dispute,  ex- 
clusive of  costs,  exceeds  one  hundred  dollars  but  is  less  than  twenty- 
five  hundred  dollars,  and  either  party  desiring  a  review  of  the  cause 
presents  a  petition  in  writing  to  any  justice  of  the  Supreme  Court, 
accompanied  by  a  copy  of  the  proceedings  complained  of,  and  an 
assignment  of  errors,  and  he  is  of  opinion  that  such  errors  involve 
questions  of  law  of  such  extensive  operation  as  to  render  a  decision 
upon  them  by  the  Supreme  Court  desirable,  he  may  allow  the  writ 
of  error  or  appeal,  by  a  written  order,  to  the  clerk  of  the  supreme 
court  of  said  district,  directing  him  to  issue  the  writ  of  error  or 
allow  the  appeal.^  But  even  in  such  a  case,  if  there  is  no  principle 
of  law  of  extensive  application  involved  in  the  case,  the  appeal  will 
be  dismissed,*  and  if  the  judgment  was  for  less  than  one  hundred 
dollars  the  defendant  is  not  entitled  to  a  writ  of  error,  although  the 
amount  claimed  was  for  a  larger  sum.' 

§  326.  Appeals  from  the  Court  of  Claims. — The  United  States 
may  also  take  an  appeal  from  any  judgment  of  the  Court  of  Claims 
adverse  to  the  United  States,  and  the  plaintiff  may  also  appeal  in 
any  case  where  the  amount  in  controversy  exceeds  three  thousand 
dollars,  or  where  his  claim  is  forfeited  to  the  United  States  by  the 
judgment  of  the  said  court  as  provided  by  section  1089.®  Appeals 
must  be  taken  within  ninety  days  after  the  rendition  of  the  judg- 
ment, and  the  procedure  is  regulated  by  the  rules  for  the  Court  of 
Claims  promulgated  b}'  the  Supreme  Court.'' 

§  327.  Judgments  and  decrees  of  state  courts  upon  a  writ  of  error. 
— The  section  of  the  Revised  Statutes  providing  for  a  review  and 

1  Rev.  Stat.  §  704.  For  construction  act  of  February  25,  1879,  eh.  99,  §  4, 

of  this  section,  see  Forsvth  v.  United  20  Stat.  321. 

States,  9  How.  571 ;  McNulty  v.  Batty,  *  Campbell  v.  Read,  2  Wall.  198. 

10  How.  72.                            "  *  Wise  v.  Columbia  Turnpike  Co.,  7 

^  Rev.  Stat.  |  705,  as  amended  by  Cr.  276. 

act  of  February  25,  1879,  ch.  99,  §  4,  «  Rev.  Stat.  I  707  ;  Id.  |  1089. 

20  Stat.  321.  '  Rev.  Stat.  §  708.     See^>os<  for  the 

^  Rev.  Stat.  I  706,  as  amended  by  Court  of  Claims  Rules. 


SUPREME    COURT — APPELLATE   JURISDICTION.  263 

re-examination  of  the  judgments  and  decrees  of  state  courts  is  as 
follows:  "A  final  judgment  or  decree  in  any  suit  in  the  highest 
court  of  a  state  in  which  a  decision  in  the  suit  could  be  had,  where 
is  drawn  in  question  the  validity  of  a  treaty  or  statute  of,  or  an 
authority  exercised  under,  the  United  States,  and  the  decision  is 
against  their  validity ;  or  where  is  drawn  in  question  the  validity 
of  a  statute  of,  or  an  authority  exercised  under,  any  state,  on  the 
ground  of  their  being  repugnant  to  the  Constitution,  treaties  or  laws 
of- the  United  States,  and  the  decision  is  in  favor  of  their  validity  ; 
or  where  any  title,  right,  privilege  or  immunity  s  claimed  under  the 
Constitution,  or  any  treaty  or  statute  of,  or  commission  held  or 
authority  exercised  under,  the  United  States,  and  the  decision  is 
against  the  title,  right,  privilege  or  immunity  specially  set  up  or 
claimed  by  either  party  under  such  Constitution,  treaty,  statute, 
commission  or  authority,  may  be  re-examined  and  reversed  or 
affirmed  in  the  Supreme  Court  upon  a  writ  of  error.  The  writ 
shall  have  the  same  effect  as  if  the  judgment  or  decree  complained 
of  had  been  rendered  or  passed  in  a  court  of  the  United  States,  and 
the  proceedings  upon  the  reversal  shall  be  the  same,  except  that 
the  Supreme  Court  may  at  their  discretion  proceed  to  a  final  de- 
cision of  the  case,  and  award  execution  or  remand  the  same  to  the 
court  from  which  it  was  so  removed.  The  Supreme  Court  may 
reverse,  modify  or  affirm  the  judgment  or  decree  of  such  state 
court,  and  may  at  their  discretion  award  execution,  or  remand 
the  same  to  the  court  from  which  it  was  removed  by  the  writ."  ^ 

The  authorities  referred  to  in  considering  the  jurisdiction  of  the 
Supreme  Court  on  writs  of  error  to  and  appeals  from  the  circuit 
courts,  and  the  observations  there  made  in  reference  to  the  con- 
struction of  the  language  "final  judgment  or  decree"  used  in  the 
section  relating  to  those  cases,  are  equally  applicable  to  this  one.^ 

There  is,  however,  at  least  one  important  difference  in  the  provisions 
of  the  two  sections.  The  former  only  provides  for  a  review  of  the 
final  decisions  of  circuit  courts  in  civil  cases,  while  the  latter  statute 
makes  no  limitation  in  respect  to  the  character  or  subject-matter  of 
the  suit.  If  there  could  have  been  any  question  concerning  the  appel- 
late jurisdiction  of  this  court  in  criminal  cases  under  the  provisipns 
of  the  Judiciary  Act,  it  would  appear  to  be  settled  by  the  provision 

1  Rev.  Stat.  |  709.     See  Rev.  Stat.        ^  See  ante,  |  303. 
I  1017  ;  act  of  February  18,  1875. 


264  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

of  section  710  of  the  Revised  Statutes,^  which  provides  as  follows: 
"  Cases  on  wiMts  of  error  to  reverse  the  judgment  of  a  state  court 
in  any  criminal  case  shall  have  precedence,  on  the  docket  of  the 
Supreme  Court,  of  all  cases  to  which  the  government  of  the  United 
States  is  not  a  party,  excepting  only  such  cases  as  the  court,  in  its 
discretion,  may  decide  to  be  of  public  importance."^ 

§  328.  "Writs  of  error  to  state  courts;  not  of  right. — Writs  of 
error  to  the  state  courts  are  issued  in  the  same  manner  and  under 
the  same  regulations,  and  have  the  same  effect,  as  if  the  judgment 
or  decree  complained  of  had  been  rendered  or  passed  in  a  court  of 
the  United  States;^  but  they  are  not  allowed  as  of  right.  The 
practice  is  to  submit  the  record  of  the  state  court  to  a  justice  of  the 
Supreme  Court,  who  upon  examination  of  it  determines  whether 
any  question  was  made  or  decided  in  the  state  court  which  is  cog- 
nizable by  this  court,  and  whether  there  is  a  case  made  by  the 
record  to  justify  the  allowance  of  the  writ. 

If  the  decision  appears  to  involve  a  question  that  gives  the  court 
jurisdiction,  it  is  generally  allowed  ;  but  if  no  such  question  ap- 
pears to  have  been  made  or  decided  in  the  court  below,  or  Avhere, 
althouirh  a  claim  of  rio;ht  under  the  Constitution  or  laws  of  the 
United  States  was  made,  yet  it  is  clear  that  the  jurisdiction  of  the 
court  does  not  extend  to  the  case  presented,  the  want  Avill  not  be 
allowed.* 

But  any  act,  from  whatever  source  originating,  to  which  the  state 
gives  the  sanction  and  the  force  of  a  law  is  within  the  meaning  of 
the  statute  providing  that  a  judgment  or  decree  of  a  state  court 
maybe  re-examined  by  this  court,  "where  is  drawn  in  question  the 
validity  of  a  statute  of,  or  an  authority  exercised  under,  any 
state,  on  the  ground  of  their  being  repugnant  to  the  Constitution, 
treaties  or  laws  of  the  United  States,  and  the  decision  is. in  favor 
of  their  validity."  If  a  state  recognizes  a  statute  as  legal,  though 
in  fact  it  may  not  be  so,  this  becomes  an  act  and  a  statute  of  the 
state  within  the  meaning  of  the  provision  under  consideration :  and 

^  This  provision   was   embraced  in         *  Twitchell  v.  The  Commonwealth, 

an  act  of  Conrrress,  .July  13,  1866,  ch.  7  Wall.   321  ;    Gleason  v.  Florida,  9 

184,  ^  69,  14  Stat.  172.  Wall.  779;    Bartemeyer   v.  Iowa,    14 

•■'•T'witchell  v.  The   Commonwealth,  Wall.  26  ;  Barron  v.  The  City  of  Bal- 

7  Wall.  321  ;  Cohens  v.  yiro;inia,  6  tiinore,  7   Pet.  243  ;    Fox  v.  Ohio,  5 

Wh.   264;    Worcester    v.  Georgia,    6  How.   434;    Smith   v.    Maryland,    18 

Pet.  515.  How.  76;    Withers    v.   Buckley,    20 

=*  Rev.  Stat.  §  1003.  How.  90. 


SUPREME    COURT — APPELLATE   JURISDICTION.  265 

if  the  question  is  presented  to  a  state  court,  whether  such  "  statute 
or  authority  exercised  under  any  state"  is  void  on  the  ground  of 
its  being  repugnant  to  the  Constitution  of  the  United  States,  and 
the  decision  is  in  favor  of  the  validity  of  the  statute  or  authority,  a 
writ  of  error  lies  to  revise  the  decision  of  the  state  court.^ 

For  various  forms  on  writ  of  error  and  appeal,  see  post,  No.  236, 
et  seq. 

§  329.  A  proper  question  must  be  presented  by  the  record. — In 
order  to  confer  jurisdiction  upon  this  court  to  review,  on  a  writ  of 
error,  the  final  decision  of  the  highest  state  court,  it  must  appear 
in  the  record  certified  to  this  court  that  a  federal  question  was  pre- 
sented to  the  court  below ;  that  is,  it  should  clearly  appear,  either 
that  there  was  drawn  in  question  the  validity  of  a  treaty  or  statute 
of,  or  an  authority  exercised  under,  the  United  States,  and  that  the 
decision  was  against  its  validity,  or  the  validity  of  a  statute  of,  or 
an  authority  exercised  under,  any  state,  on  the  ground  of  its  being 
repugnant  to  the  Constitution,  treaties  or  laws  of  the  United  States, 
and  the  decision  is  in  favor  of  its  validity;  or  that  some  title,  right, 
privilege  or  immunity  was  claimed  under  the  Constitution,  or  some 
treaty,  statute  of  or  commission  held  or  authority  exercised  under 
the  United  States,  and  the  decision  was  against  the  title,  right, 
privilege  or  immunity  specially  set  up  or  claimed  by  the  plaintiff 
in  error.  If  the  record  fails  to  show  this,  the  writ  will  be  dismissed 
for  want  of  jurisdiction.^  If  the  question  presented  is  one  of  pre- 
scription, or  of  discretion  in  refusing  to  grant  a  motion  for  a  new 
trial,  or  a  rehearing  in  an  equity  suit,  or  whether  a  statute  is  repug- 
nant to  the  constitution  of  the  state,  there  is  involved  no  federal 
question,  and  a  writ  of  error  to  review  a  final  judgment  of  the 
highest  state  court  thereon  will  be  dismissed.^ 

§  o30.  A  specific  question  must  be  presented  by  the  record. — The 
record  must  present  a  specific  question  or  specific  questions  for 
review ;  and  it  is  not  sufiicient  that  it  state  in  a  general  way  that 

^  Williams  v.  Bruffy,  96  U.  S.  176.  Worthy   v.    The     Commissioners,     9 

See  also  Ford  v.  Suriret,  97  U.  S.  594;  Wall.    613  ;     Northern    Railroad   v. 

The  Binghamton  Bridge,  3  Wall.  51;  The    People,   12  Wall.  384;    Rector 

University  v.  People,  99  U.  S.  309.  v.   Ashley,    6    Id.    174  ;    Furman   v. 

'^  Caperton  v.  Bowyer,  14  Wall.  216  ;  Nichol,  8  Id.  56  ;    Peck  v.  Sanderson, 

Steines  V.  Franklin  Co.,  Id.  15;  Ham-  18  How.  42;  Bank  v.   McVeigh,  98 

ilton  Co.  V.  Massachusetts,  6  Id.  636.  U.    S.  332  :     Lange   v.  Benedict,   99 

=*  Marqueze  v.  Bloom,  16  Wall.  351  ;  Id.  68. 
Gibson   v.    Chauteau,    8   Wall.    314; 


266  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

"the  charge  of  the  court,  the  verdict  of  the  jury  and  the  judg- 
ment below  are  each  against  and  in  conflict  with  the  Constitution 
and  laws  of  the  United  States,"  but  the  specific  clause  in  the 
Constitution,  or  the  particular  statute  or  act  of  Congress,  should  be 
indicated,  that  the  court  may  determine  not  only  what  the  claim  is, 
but  whether  it  was  denied.^ 

Nor  will  this  court  entertain  jurisdiction  where  it  appears  from 
the  record  that  the  judgment  or  decree  of  the  court  below  may  be 
well  sustained  upon  other  grounds  than  the  one  involved  in  the 
federal  question  presented,  although  there  was  error  in  the  decision 
as  to  the  latter.^  But  where  the  judgment  or  decree  cannot  be 
maintained  on  other  grounds,  and  a  federal  question  has  been  pre- 
sented and  the  highest  state  court  has  decided  against  the  right 
claimed  by  the  plaintiff  in  error,  this  court  will  entertain  jurisdic- 
tion of  the  case  and  re-examine  the  judgment  below,  and  determine 
whether  it  was  a  proper  one,  and  either  reverse  or  aflSrm  it.' 

An  annual  license  tax  was  imposed  upon  insurance  companies 
located  and  having  an  office  and  doing  business  within  a  city,  by  an 
ordinance  of  the  city.  The  question  raised  in  the  highest  state 
court  was  whether  such  an  ordinance  was  not  repugnant  to  the  Con- 
stitution of  the  United  States,  and  the  state  court  decided  that  it 
was  not.  This  court  held  that  a  writ  of  error  would  lie  from  the 
decision.* 

So  an  objection  to  the  introduction  of  a  deed  as  evidence  for  the 
want  of  a  revenue  stamp,  required  by  the  statutes  of  the  United 
States,  but  which  was  admitted  in  evidence  notwithstanding  the  ob- 
jection,^ was  held  to  present  a  question  as  to  the  proper  interpretation 

1  Maxwell  v.  Newbold,  18  How.  511 ;  20  Wall.  591 5  Armstrong  v.  Treasurer, 
Wolf  V.  Stis,  96  U.  S.  541  ;  Mathews  16  Pet.  281  ;  Crowell  v.  Randall,  10 
«.  McStea,  6  Wall.  646  ;  Messenger?;.  Id.  368;  Cousin  v.  Blane,  19  How. 
Mason,  10  Wall.  507  ;  Edwards  v.  El-  202  ;  Grand  Gulf  R.  Co.  v.  Marshall, 
liott,  21  Wall.  532  :  Scott  v.  Jones,  5  12  How.  165  ;  Williams  v.  Norris,  12 
How.  343.  AVh.  117  ;  Brown  v.  Atwell,  92  U.  S. 

2  Kennebec   Railroad    v.    Portland  327  ;  Rev.  Stat.  ^  709. 

Railroad,  14  Wall.  23.  See  also  Kling-  ^  Home  Insurance  Co.  v.  City  Coun- 
evv.  Missouri,  13  Id.  257;  Railroad  oil,  93  U.  S.  116.  See  also  Osborne  v. 
Company  t;.  Maryland,  20  Id.  643;  Mobile,  16  Wall.  479  ;  Cannon  v.  New 
Cockroft  V.  Vose,  14  Id.  5  ;  Bank  of  Orleans,  20  Id.  577  ;  Sevier  v.  Ilas- 
West  Tennessee  v.  Citizens'  Bank,  14  kell,  14  Id.  15  ;  McGuire  v.  The  Corn- 
Id.  9  ;  Palmer  v.  Marston,  Id.  10 ;  monwealth,  3  Id.  382 ;  The  License 
Sevier  v.  Haskell,  Id.  12  ;  Smith  v.  Cases,  5  Id.  462 ;  Weston  v.  City 
Adsit,  16  Id.  185;  Moore  v.  Missis-  Council,  2  Pet.  449. 
sippi,  21  Wall.  636.  ^  Hall  v.  Jordan,  15  Wall.  393. 
^  Murdockt?.  The  City  of  Memphis, 


SUPKEME    COURT — APPELLATE   JURISDICTION.  267 

of  a  United  States  statute  ;^  and  so  the  power  of  the  court  in  bank- 
ruptcy under  such  statutes  to  order  a  sale  of  property  in  a  particu- 
lar case^  was  also  held  to  present  a  proper  federal  question  and  to 
give  the  Supreme  Court  jurisdiction  on  a  writ  of  error. 

For  form  of  writ  of  error  to  the  state  court,  see  post,  No.  239. 

§  331.  Right  of  the  United  States  to  a  writ  of  error. — Where  the 
United  States  is  a  party  to  a  suit  in  a  state  court,  it  has  the  same 
right  to  a  review  by  a  writ  of  error,  and  no  more  than  a  private  in- 
dividual, and  they  are  entitled  to  it  under  the  same  circumstances.^ 

§  332.  Highest  court  of  a  state  ;  construction. — The  statute  pro- 
vides for  the  removal  of  a  cause  by  a  writ  of  error  in  the  cases 
specified,  from  the  final  judgment  or  decree  of  "  the  highest  court 
of  a  state  in  which  a  decision  in  the  suit  could  be  had."  It  does 
not  follow,  therefore,  that  the  decision  sought  to  be  reviewed  should 
have  been  rendered  by  the  highest  court  or  court  of  last  resort  in 
the  state  ;  but  it  is  only  necessary  that  it  be  the  court  of  last  resort, 
or  the  highest  court  where  a  decision  could  be  had  in  the  particular 
case  in  which  a  review  of  the  decision  is  desired.  If  there  is 
a  trial  in  a  state  court  of  original  jurisdiction,  and  a  federal  ques- 
tion is  presented,  if  there  is  no  right  of  appeal  therefrom  to  the 
highest  court  of  review  in  the  state  for  want  of  the  sufficiency 
of  the  amount  in  controversy,  or  for  any  other  cause,  then  the 
writ  may  issue  to  such  state  court  of  original  jurisdiction,  and 
the  Supreme  Court  can  take  cognizance  of  the  cause. ^  And  this 
has  been  held  to  be  proper  where  a  party  has  a  clear  right  to  appeal 
from  an  inferior  to  a  higher  state  court,  but  this  right  is  unlawfully 
refused  ;  in  which  case  it  has  been  held  proper  to  send  the  writ  to 
the  former,  and  to  hear  and  determine  the  cause  when  the  record  is 
properly  certified  from  such  court.^ 

There  are  other  cases  where  the  writ  will  issue  to  an  inferior 
state  court ;  and  the  letter  of  the  law  will  not  be  permitted  to  destroy 
its  spirit  and  purpose.  Thus,  where  a  cause  involving  a  federal 
question  has  been  duly  passed  upon  and  determined  against  the 

1  Gregory    v.    McVeigh,    23  Wall.         *  Miller  v.  Joseph,  17  Wall.  655. 
294.  sQi-egory    i\    McVeigh,    23    Wall. 

2  O'Brien  v.  Weld,  92  U.  S.  81.  294  ;  Downham  v.  Alexandria,  9  Wall. 
*  United    States  v.    Thompson,   93     ()59  ;  Richmond,  etc.,  R.  Co.  v.  Rail- 

U.   S.   586.     See  also  Dolman  v.  In-  road  Company,  13  How.  80;  Windsor 

surance  Co.,  14  Wall.  666  ;  Insurance  v.  McVeigh,  93  U.  S.  274;  Bryan  v. 

Co.  V.  Hendren,  92  U.  S.  287  ;  Rock-  Bates.  94  Mass.  201. 
hold  V.  Rockhold,  92  U.  S.  130. 


268  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

party  insisting  upon  rights  under  federal  laws,  in  the  highest  court 
of  the  state,  and  has  been  remanded  to  an  inferior  court  of  the  state, 
requiring  it  to  proceed  in  accordance  with  the  opinion,  and  enter 
judgment  there,  the  inferior  court  would  in  such  a  case  be  treated 
as  the  highest  court  of  the  state,  and  the  writ  of  error  would 
properly  issue  to  it.^ 

In  case  the  highest  court  of  the  state  reverses  the  judgment  or 
decree  of  the  inferior  court,  and  remands  the  cause  for  further  pro- 
ceedings, a  writ  issuing  to  the  former  for  the  purpose  of  review- 
ing a  federal  question  would  be  dismissed  ;^  mere  reversal  by  the 
highest  state  court  of  the  judgment  or  decree  of  an  inferior  court 
is  not  such  a  final  judgment  of  the  highest  state  court  as  is  con- 
templated by  the  statute  giving  jurisdiction  to  the  Supreme  Court 
on  writs  of  error  to  the  state  courts.^ 

§  333.  What  the  certified  record  must  contain. — The  record  should 
clearly  show  that  a  proper  federal  question  was  presented,  and  in 
case  a  right,  title,  privilege  or  immunity  was  set  up  and  claimed,  it 
must  appear  that  this  was  claimed  by  the  plaintiif  in  error  for  him- 
self and  not  for  another,  and  that  the  decision  was  against  him.* 

It  must  further  appear  from  the  certified  record  that  the  state 
court  decided  the  very  case  relied  upon  to  give  the  Supreme  Court 
jurisdiction;^  and  if  it  appears  from  the  record  that  it  was  not 
necessary  for  the  state  court  to  pass  upon  the  question,  or  that  such 
a  question  was  not  in  fact  passed  upon,^  or  that  the  decision  rested 
upon  the  general  principles  of  the  law  of  nations,  or  upon  a  consti- 
tutional provision  which  merely  declares  a  settled  rule  of  juris- 
prudence,^ this  court  will  not  take  cognizance  of  the  cause,  but  will 
dismiss  the  writ  for  the  want  of  jurisdiction.^ 

§  334.  Jurisdiction  cannot  be  conferred  by  consent. — It  is  a  doc- 
trine universally  recognized  that  jurisdiction,  either  original  or 
appellate,  of  federal  courts  cannot  be  conferred  by  consent.     The 

1  Atherton  v.  Fowler,  91  U.  S.  143.         ^  Cockroft  v.  Vose,  14  Wall.  5. 

2  Davis  V.  Couch,  94  U.  S.  514.  ^  l^q^  ^_  Converse,  91  U.  S.  105  ; 
^  McComb    V.    Commissioners,    91     Texas  w.  White,  7  Wall.  733 ;    Hunt- 

U.  S.  1  ;  Tracy  v.  Holcomb,  24  IIow.  ingdon  v.  Texas,  16  Id.  412;  Horn  v. 

427  ;   Parcels  v.   Johnson,   20   Wall.  Lockhart,  17  Id.  580. 

054.  '  Tennessee  Bank  v.  Bank  of  Louis- 

*  Warfield  v.  Chaffe,  91  U.  S.  690 ;  iana,  14  Wall.  9  ;  Palmer  v.  Marston, 

Long  V.  Converse,  Id.  105  ;  Verdea  v.  Id.  10. 

Coleman,  1  Black  472 ;  Henderson  v.  ^  JVew  York  Life  Ins.  Co.  v.  Hen- 
Tennessee,  10  IIow.  311;  Hale  v.  dren,  92  U.  S.  286  ;  Bethel  y.  Damaret, 
Gaines,  22  Id.  149.  10  Wall.  537. 


SUPREME    COURT — APPELLATE    JURISDICTION.  269 

jurisdiction  of  these  courts  is  conferred  by  the  Constitution  and 
by  acts  of  Congress,  and  is  special  and  limited ;  and  they  have 
no  jurisdiction  except  in  the  particular  cases  provided  for  them. 
Neither  the  consent  of  both  parties  nor  of  their  counsel  can  give 
jurisdiction  either  of  an  original  case  or  on  appeal  or  writ  of  error, 
but  the  record  must  show  the  requisite  facts  conferring  it.^ 

§  335.  Constitutionality  of  state  laws. — If  the  question  presented 
was  whether  a  statute  of  a  state  was  void  on  the  ground  of  its 
repugnance  to  the  Constitution  of  the  United  States,  it  must  appear 
from  the  record  that  the  decision  was  in  favor  of  its  validity,  or  the 
Supreme  Court  could  not  take  cognizance  of  the  case.^  But  if  it 
is  claimed  that  the  legislature  of  a  state  had  no  authority  to  make 
the  statute,  or  did  not  pass  the  statute  involved  in  the  controversy, 
this  would  not  present  a  federal  question  which  could  be  reviewed 
on  a  writ  of  error.^ 

§  336.  Illustration  of  the  application  of  the  statute. — The  con- 
struction and  application  of  the  provision  of  the  federal  statute 
under  consideration  may  be  illustrated  by  a  few  recent  cases.  Thus, 
where  the  plaintiff  in  error  sued  upon  certain  notes,  claiming  that 
under  a  proper  construction  of  the  Constitution  of  the  United  States 
he  was  entitled  to  the  payment  thereof  in  gold  and  silver  coin,  and 
the  decision  of  the  court  below  was  against  his  claim,  this  was  held 
to  be  a  proper  case  for  review  on  a  writ  of  error,* 

So  where  the  question  presented  was  whether  the  mortgage  of  a 
vessel,  duly  recorded  in  pursuance  of  an  act  of  Congress,  gave  a 
better  lien  than  an  attachment  under  the  statute  of  a  state,  and  the 
decision  was  that  it  did  not,  this  was  held  reviewable  on  a  writ  of 
error. ^ 

§  337.  Claim  under  a  statute,  grant  or  treaty  of  the  United  States. 
— If  a  title,  right  or  privilege  is  claimed  under  a  statute,  grant  or 

1  Mills    V.    Brown,    16    Pet.    525;  r.  Gallao;her,  15  Pet.  18  ;  Williams  u. 

Walker  v.  Taylor,  15  How.  64  ;  Med-  Norris,  12  Wh.  117;  Owings  v.  Speed, 

berry  v.  State,  24  Id.  413;  Murdock  5  Id.  420;   McKinney  v.  Carroll,   12 

V.  Memphis,  20  Wall.  590 ;   Smith  v.  Pet.  70 :  Crowell  v.  Gallagher,  10  Id. 

Adsit,  16  Id.  185.  368. 

••=  Walker  v.   Taylor,   5    How.   64;  *  Trebilcockw.  Wilson,  12  Wall.  687. 

Commonwealth  Bank  v.  Griffith,   14  See  also  Dooley  ij.  Smith,  13  Id.  604 : 

Pet.  56;   Rector  v.  Ashley,  6  Wall.  Legal  Tender  Cases,  12  Id.  457;  Uni- 

142  ;  Gordon  v.  Caldcleugh,  3  Cr.  268  ;  versity  v.  People,  99  U.  S.  309. 

Doe  V.  Eslava,  9  How.  421;   Mont-  ^  ^Idrich  w.  .Etna  Co.,  8  Wall.  491. 

gomery  v.  Hernandez,  12  Wh.  129.  See  also  White's  Bank  v.  Smith,  7  Id. 

*  Scott  V.  Jones,  5  How.  343  ;  Coons  640. 


270  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

treaty  of  the  United  States,  the  decision  must  be  against  the  title, 
right  or  privilege  specially  set  up  or  claimed  by  the  party  seeking 
a  review  of  the  judgment  of  the  state  court. 

Thus,  "where  a  defendant  in  a  suit  in  ejectment  claimed  the  land 
in  controversy  under  a  title  which  sprung  from  a  reservation  in  a 
treaty  between  the  United  States  and  an  Indian  tribe,  and  the  state 
court  decided  against  the  validity  of  the  title  thus  set  up,  it  was 
held  by  the  Supreme  Court  that  the  title  thus  asserted  grew  out  of 
a  treaty,  and  that  the  case  presented  a  proper  federal  question 
which  gave  the  court  jurisdiction.^  So  where  the  claim  of  title 
to  land  rested  upon  an  act  of  Congress,  it  was  held  that  it  must 
appear  that  the  decision  was  against  the  claim  thus  asserted,  to 
give  the  Supreme  Court  jurisdiction  on  a  writ  of  error.^  And  where 
the  question  presented  to  the  state  court  was  as  to  the  validity  of  a 
patent  of  lands  granted  by  the  United  States,  and  the  decision  of 
the  state  court  was  against  its  validity,  this  was  held  to  be  review- 
able on  a  writ  of  error. ^ 

§  338.  Review  on  error  in  criminal  cases. — The  Statute  covers 
decisions  in  criminal  cases  as  well  as  in  civil  suits,  and  there  is  no 
distinction  between  them  in  respect  to  the  right  of  re-examination 
in  this  court. ^ 

The  statute  gives  precedence  in  such  cases  on  the  docket  of  the 
Supreme  Court.  It  provides  as  follows  :  "  Cases  on  writs  of  error 
to  revise  the  judgment  of  a  state  court  in  any  criminal  case  shall 
have  precedence  on  the  docket  of  the  Supreme  Court  of  all  cases 
to  which  the  government  of  the  United  States  is  not  a  party,  ex- 
cepting only  such  cases  as  the  court  in  its  discretion  may  decide  to 
be  of  public  importance."^ 

For  forms  on  writs  of  error  and  on  appeals,  see  post,  No.  236,  et 
seq.     For  forms  of  various  writs,  see  post,  No.  254,  et  seq. 

§  339.  Transcripts  and  other  papers  on  appeal. — In  case  of  appeal 
of  any  cause  in  equity  or  of  admiralty  and  maritime  jurisdiction, 

^  Henderson  v.  Tennessee,  10  How.  See  also  Taylor  v.  Maguire,  17  Wall. 

311 ;  Owings  v.  Norwood,  5  Cr.  344  ;  253;  Neilson  v.  Lagow,  12  How.  110  j 

Udell  V.  Davidson,  7  How.  769  ;  Ful-  Carpenter  v.  Williams,  9  Wall.  786. 
ton  V.  McAffee,   16   Pet.  149 ;  Mont-         *  Prigg  v.  Commonwealth,  16  Pet. 

gomery  v.  Hernandez,  12  Wh.  129.  539  ;  Worcester  v.  Georgia,  6  Pet.  515  ; 

^  Rector  v.  Ashley,    6  Wall.   142 ;  Cohens    v.    Virginia,    6    Wh.     264  -, 

Bagnel  v.  Brodrick,  13  Pet.  436  ;  Les-  Twitchell  v.  Commonwealth,  7  Wall, 

sieur  v.  Price,  12  How.  60.  32. 

'  Reichart  v.  Felps,  6  Wall.   160.        »  Rev.  Stat.  §  710. 


SUPREME   COURT — APPELLATE   JURISDICTION.  271 

or  of  prize  or  no  prize,  a  transcript  of  the  record  and  copies  of  the 
proofs,  and  of  such  entries  and  papers  on  file  as  may  be  necessary 
on  the  hearing  of  the  appeal,  must  be  transmitted  to  the  Supreme 
Court.  And  either  the  court  below  or  the  Supreme  Court  may 
order  any  original  document  or  other  evidence  to  be  sent  up  in  ad- 
dition to  the  copy  of  the  record  or  in  lieu  of  a  part  of  it.  On  such 
appeals  no  new  evidence  can  be  received  in  the  Supreme  Court 
except  in  admiralty  and  pi'ize  cases. ^  The  transcript  is  required  to 
be  under  the  hand  of  the  clerk  with  the  seal  of  the  court;  but  it 
is  sufiiciently  authenticated  if  it  be  signed  by  a  deputy  clerk  in 
the  name  of  and  for  his  principal,  and  sealed  with  the  seal  of  the 
court.^ 

1  Rev.  Stat.  |  698 ;  Id.  ^  750.  «  Garneau  v.  Dozier,  100  U.  S.  7. 


CHAPTER  XIV. 

PRACTICE  AND  PROCEDURE  ON  WRITS  OF  ERROR  AND  APPEAL. 

§  340.  The  writ  and  record. — Having  considered  the  jurisdiction 
of  the  Supreme  Court  on  writs  of  error  and  appeal,  we  now  proceed 
to  point  out  more  particularly  the  practice  and  procedure  in  such 
cases. 

When  a  writ  of  error  is  allowed  it  will  be  issued  by  the  clerk  of 
the  court,  as  we  shall  hereafter  more  particularly  notice,  signed  by 
him  and  under  the  seal  of  the  court,  and  bear  teste  of  the  Chief 
Justice,  and  be  directed  to  the  clerk  of  the  court  the  judgment  of 
which  it  is  sought  to  review.^  It  is  the  duty  of  the  clerk  to  which 
it  is  directed  to  make  return  thereto,  and  to  annex  to  and  return 
with  the  writ,  "  at  the  day  and  place  mentioned,  an  authenticated 
transcript  of  the  record,  and  assignment  of  errors,  and  a  prayer 
for  reversal,  with  a  citation  to  the  adverse  party  ;"^  and  in  all  cases 
brought  to  the  Supreme  Court  by  writ  of  error  or  appeal,  the  clerk 
of  the  court  by  which  the  judgment  or  decree  was  rendered  is  also 
required  to  annex  to  and  remit  with  the  record  a  copy  of  the  opin- 
ion or  opinions  filed  in  the  case;  and  no  cause  will  "be  heard  until 
a  complete  record,  containing  in  itself,  without  references  aliunde^ 
all  the  papers,  exhibits,  depositions  and  other  proceedings  which  are 
necessary  to  the  hearing  in  this  court,  shall  be  filed." ^ 

If  there  is  a  failure  in  these  respects,  the  circuit  court  may  either 
dismiss  the  writ  or  appeal  or  may  dispose  of  the  case  so  far  as  it 
can  consistently  be  done  on  the  record  returned.*  But  it  is  the 
duty  of  the  plaintiff  in  error  to  see  that  a  proper  transcript  is  pre- 
pared, and  if  it  does  not  contain  all  that  it  should  contain,  he  may, 
on  a  proper  showing,  procure  a  certiorari  for  diminution  of  record, 
and  thereby  secure  a  full  and  proper  return.  But  the  citation  is 
not  considered  as  a  part  of  the  record,  as  it  is  not  a  part  of  the 
proceedings  of  the  court,  and  hence  a  cause  will  not  be  dismissed 

^  Gen.  Rule  8.  form    required    by    Gen.    Rule.    21  : 

2  Rev.  Stat.  §  997.  Portland     Co.   v.    United   States,   15 

'^  Gen.  Rule  8,  par.  2  and  3.  Wall.  1 ;  Deitsoh  v.  Wiggins,  15  Wall. 

*  It  was  so  held  also  where  there  539. 
Avas  a  failure  to  file  a   brief,  in   the 


SUPREME    COURT — APPELLATE    JURISDICTION.  273 

on  this  account,  but  proof  thereof  may  be  shown  aliunde}  For 
forms  in  case  of  writ  of  error  or  appeal,  seejoos^,  No.  236,  et  seq. 

§  341.  Rules  relating  to  the  transcript  and  papers. — Rule  8  pro- 
vides that  whenever  it  shall  be  necessary  or  proper,  in  the  opinion 
of  the  presiding  judge  of  the  circuit  court  or  district  court  exercis- 
ing circuit  court  jurisdiction,  that  original  papers  of  any  kind  should 
be  inspected  in  the  Supreme  Court  upon  appeal  or  writ  of  error,  he 
may  make  such  rule  or  order  for  the  safe  keeping,  transportation 
and  return  of  such  papers  as  to  him  may  seem  proper,  and  the 
Supreme  Court  will  receive  and  consider  such  papers  in  connection 
with  the  transcript  of  the  proceedings.  And  Rule  11  provides 
that  whenever  any  record  transmitted  to  this  court  upon  a  writ  of 
error  or  appeal  shall  contain  any  document,  paper,  testimony  or 
other  proceeding  in  a  foreign  language,  and  the  record  does  not  con- 
tain a  translation  of  such  document,  paper,  testimony  or  other  pro- 
ceeding, made  under  the  authority  of  the  inferior  court  or  admitted 
to  be  correct,  the  record  shall  not  be  printed,  but  the  case  shall  be 
reported  to  the  court  by  the  clerk,  and  the  court  will  thereupon 
remand  it  to  the  inferior  court  in  order  that  a  translation  may  be 
there  supplied  and  inserted  in  the  record.  For  form  of  writ  of 
error  to  state  court,  see  post,  No.  239.  For  form  of  writ  of  error 
to  federal  court,  see  post,  No.  240. 

§342.  Writs  of  error ;  when  returnable. — In  reference  to  the 
time  of  the  return  of  a  writ  of  error  and  citation,  it  is  provided  by 
rule  that  "in  cases  where  final  judgment  is  rendered  more  than 
thirty  days  before  the  first  day  of  the  next  term  of  this  court,  the 
writ  of  error  and  citation,  if  taken  before,  must  be  returnable  on 
the  first  day  of  said  term,  and  be  served  before  that  day ;  but  in 
cases  where  the  judgment  is  rendered  less  than  thirty  days  before 
the  first  day,  the  writ  of  error  and  citation  may  be  made  returnable 
on  the  third  Monday  of  the  said  term,  and  be  served  before  that 
day."^  It  is  further  required  by  statute  that  the  adverse  party 
shall  have  at  least  thirty  days  notice  on  a  citation  to  the  Supreme 
Court.^    For  form  of  citation,  see  post,  No.  341. 

§  343.  Bond  for  costs. — It  is  the  duty  of  the  clerk  of  the 
Supreme  Court  to  take  a  bond  of  the  plaintiff  in  error  or  appellant^ 
with  competent  surety  to  secure  his  fees  in  the  penalty  of  two  hun- 

*  Innerarity  v.  Byrne,  5  How.  295.  ^  Rev.  Stat.  §  999.     See  also  Gen. 

2  Gen.  Rule  8,  par.  5.  Rule  9. 

18 


274  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

tired  dollars;  or  to  require  of  the  said  party  a  deposit  of  that  amount 
to  be  placed  in  bank  subject  to  his  draft,  or  otherwise  satisfy  him 
in  that  behalf.'  Each  party  is,  however,  primarily  liable  to  the 
clerk  for  such  fees,  for  services  he  performs  for  such  party,  without 
regard  to  the  party  who  recovers  costs ;  and  these  costs  may  be 
enforced  by  process  of  attachment.- 

Rule  10  on  this  subject  provides :  "  Upon  the  clerk  of  this  court 
producing  satisfactory  evidence,  by  affidavit  or  the  acknowledgment 
of  the  parties  or  their  sureties,  of  having  served  a  copy  of  the  bill 
of  fees  due  them  respectively  in  this  court,  on  such  parties  or  their 
sureties,  an  attachment  shall  issue  against  such  parties  or  their 
sureties  respectively,  to  compel  payment  of  the  said  fees."^ 

§  344.  Appearance  of  counsel ;  and  the  parties. — Upon  the  filing 
of  the  transcript  of  the  record,  brought  up  either  by  writ  of  error 
or  appeal,  the  appearance  of  the  counsel  for  the  plaintiff  in  error 
•or  appellant  shall  be  entered.*  If  there  should  be  no  appearance 
entered  for  the  plaintiff  or  appellant  when  the  case  is  called  for 
trial,  the  defendant  or  appellee  may  have  the  case  called  and  dis- 
miss the  writ  of  error,  or  may  open  the  record  and  ask  for  an  affirm- 
ance of  the  judgment  below. ^  If  the  defendant  fails  to  appear 
when  the  cause  is  called  for  trial,  the  court  may  proceed  to  hear 
an  argument  on  the  part  of  the  plaintiff,  and  to  give  judgment  ac- 
cording to  the  right  of  the  case.^  If  neither  party  appears  when 
the  case  is  reached  on  a  regular  call  of  the  docket,  and  no  appear- 
ance is  entered  for  either  party,  the  case  must  be  dismissed  at  the 
.cost  of  the  plaintiff;''  and  if  at  the  second  term  neither  party  is 
prepared  to  argue  the  cause,  it  will  be  dismissed  at  the  cost  of  the 
plaintiff,  unless  sufficient  excuse  is  shown  for  a  postponement.^ 

§  345.  Docketing  cases ;  filing  transcript. — If  a  writ  of  error  or 
an  appeal  is  brought  to  this  court  from  any  judgment  or  decree 
rendered  thirty  days  before  the  commencement  of  the  term,  it  is 
the  duty  of  the  plaintiff  in  error  or  the  appellant,  as  the  case  may 
be,  to  docket  the  cause  and  file  the  record  thereof  with  the  clerk  of 
the  Supreme  Court,  within  the  first  six  days  of  the  term  ;  and  if  the 
writ  of  error  or  appeal  is  brought  from  a  judgment  or  decree  ren- 

'  Gen.  Rule  10,  as  amended  May  8,  *  Gen.  Rule  9,  par.  3. 

]87G.  '"  Gen.  Rule  16. 

^  Caldwell  v.  Jackson,  7  Cr.  277.  *  Gen.  Rule  17. 

^  For  form  of  bond,  see  post,  No.  '  Gen.  Rule  18. 

242.  *  Gen.  Rule  19. 


SUPREME   COURT — APPELLATE    JURISDICTION.  2(0 

(lerecl  less  than  thirty  days  before  the  commencement  of  the  term, 
it  is  the  duty  of  the  plaintiif  in  error  or  appellant  to  docket  the 
cause  and  file  the  record  thereof  with  the  clerk  of  the  court  within 
the  first  thirty  days  of  the  term.  If  he  fails  so  to  do,  the  defend- 
ant in  error  or  appellee,  as  the  case  may  be,  may  have  the  case 
docketed  and  dismissed  by  producing  a  certificate  from  the  clerk  of 
the  court  wherein  the  judgment  or  decree  was  rendered,  stating  the 
cause  and  certifying  that  the  writ  of  error  or  appeal  has  been  duly 
sued  out  and  allowed;  and  in  no  case  will  the  plaintiff  in  error  or 
appellant  be  allowed  to  docket  the  cause  and  file  the  record  after 
the  same  shall  have  been  docketed  and  dismissed  as  aforesaid, 
unless  by  the  order  of  the  court. ^  But  in  cases  of  writs  of  error  or 
appeals  from  California,  Oregon,  Washington,  New  Mexico,  Utah, 
Nevada,  Arizona,  Montana  and  Idaho,  the  time  mentioned  above 
is  extended  to  sixty  days.^ 

Under  the  provisions  of  this  rule  the  appellee  cannot  use  the  copy 
of  the  record,  brought  up  by  the  appellant  and  lodged  with  the 
clerk  of  this  court,  to  have  the  case  docketed  and  dismissed,  on  the 
ground  that  the  appellant  has  failed  to  comply  with  the  rule  which 
requires  a  bond  to  be  given  for  the  clerk's  fees.^  To  sustain  such 
a  motion  it  would  be  necessary  to  procure  and  produce  a  certificate 
of  the  clerk  of  the  court  below,  stating  the  cause  and  showing  that 
the  appeal  had  been  duly  allowed.* 

And  it  has  been  held  that  the  certificate  of  the  clerk  of  the  court 
below,  that  he  cannot  consistently  with  his  other  duties  certify  the 
record  in  time  to  comply  with  the  rule,  is  not  a  sufficient  reason  for 
extending  the  time  prescribed  by  the  rule.^  But  in  a  more  recent 
case  the  court  was  disposed  not  to  enforce  it,  where  the  delay  in 
procuring  the  transcript  arose  from  no  fault  of  the  appellant,  but 
resulted  from  the  fraud  of  the  other  party,  or  the  ill-founded  order 
of  the  court,  or  the  contumacy  of  the  clerk  below. ^  In  the  absence 
of  any  showing  of  excuse  for  the  delay,  the  transcript  must  be  filed 
and  the  case  docketed  in  the  Supreme  Court  at  the  term  next  fol- 
lowing the  date  of  the  appeal,  or  the  court  will  not  have  jurisdic- 

^  Gen.  Rule  9.  See  also  Edmondson  v.  Bloomshire,  7 

2  Id.  Wall.  306. 

3  Gen.  Rule  10.  «  United  States  v.  Gomez,  3  Wall. 
*  West  V.  Brashear,  12  Pet.  101.  752.  See  also  United  States  v.  Hodge, 
»  Sturgess  i?.  Harrold,  18  How.  40.  3   How.    534;    Villabolos  v.   United 

States,  6  How.  81. 


276  FEDER/iL    PLEADING,    PRACTICE   AND    PROCEDURE. 

tion  and  the  cause  "will  be  dismissed ;  but  this  would  not  prevent 
another  appeal  at  any  time  within  two  years,  and  this  court  would 
take  cognizance  of  the  case  on  such  subsequent  appeal,  if  the  tran- 
script was  properly  filed  and  the  case  docketed  at  the  term  and 
within  the  time  prescribed  after  the  date  of  the  last  appeal.* 

§  346.  Duty  of  the  clerk ;  records  to  be  printed. — It  is  the  duty 
of  the  clerk  of  this  court  to  have  fifteen  copies  of  the  record,  in  all 
cases,  printed  for  the  use  of  the  court,  to  be  charged  to  the  govern- 
ment with  the  expenses  of  the  court ;  and  it  is  his  duty  to  furnish 
manuscript  copies  to  the  printer  for  this  purpose,  and  to  supervise 
the  printing,  and  to  take  care  of  and  distribute  the  printed  copies 
to  the  judges,  the  reporter  and  the  parties,  from  time  to  time,  as 
required.  He  is  required  to  deliver  to  each  party  a  copy  of  the 
printed  record,  and  in  case  of  dismissal,  reversal,  or  affirmance  with 
costs,  the  fees  for  the  said  manuscript  copy  of  the  record  shall  be 
taxed  to  the  party  against  whom  the  costs  are  given ;  which  in- 
cludes the  charge  for  the  copy  furnished  him.  But  in  case  of  dis- 
missal for  want  of  jurisdiction,  the  fees  for  the  copy  must  be  taxed 
against  the  party  who  brought  the  cause  into  court,  unless  the  court 
shall  otherwise  direct.^ 

§  347.  Motion  day. — By  a  rule  of  this  court  Monday  of  each 
week  is  motion  day,  on  which  all  motions  ready  for  argument  will 
be  heard.  All  motions  not  required  by  the  rules  of  the  court  to  be 
put  on  the  docket  are  entitled  to  a  preference,  and  will  be  heard 
immediately  after  the  rendering  of  opinions,  if  such  motions  shall 
be  made  before  the  court  shall  have  entered  upon  the  hearing  of  a 
cause  upon  the  docket.^ 

For  forms  of  motion  in  difi'erent  cases,  see  post,  Nos.  220,  228. 

§  348.  Motions  to  dismiss  and  affirm. — All  motions  must  be  in 
writing,  and  contain  a  brief  statement  of  the  facts  on  which  they 
are  based  and  the  objects  of  the  motion ;  and  no  motion  to  dismiss 
can  be  heard  unless  previous  notice  thereof  is  given  to  the  adverse 
party  or  the  attorney  or  counsel  of  such  party,  unless  the  court 
shall  make  a  special  assignment  to  docket  and  dismiss  appeals  and 
writs  of  error.     And  all  such  motions,  except  those  to  docket  and 

'  Steamer  Virginia  w.  West,  19  IIow.  ^  Gen.  Rule  10. 

182:  United  States  y.  Carey,  6  How.  *  Gen.  Rule  6,  as  amended  December 

106:  Mesa  v.  United  States,  2  Black  14,  1874. 
721. 


SUPREME    COURT — APPELLATE    JURISDICTION.  277 

dismiss,  as  provided  for  by  the  ninth  rule,  must  be  submitted  in  the 
first  instance  on  printed  briefs  or  arguments  ;  and  if  the  court  de- 
sires further  argument  on  the  subject,  it  will  be  ordered  in  connec- 
tion with  the  hearing  on  the  merits.  The  party  moving  to  dismiss 
is  required  to  serve  notice  of  the  motion,  with  a  copy  of  his  brief 
or  argument,  on  the  counsel  for  the  plaintiff  in  error  or  the  appel- 
lant of  record  in  this  court,  at  least  three  weeks  before  the  time 
fixed  for  submitting  the  motion,  except  where  the  counsel  to  be 
notified  resides  west  of  the  Rocky  Mountains,  in  which  case  the 
notice  must  be  served  at  least  thirty  days  before  the  time  fixed  for 
the  hearing  of  the  sarae.^ 

With  a  motion  to  dismiss  a  writ  of  error  to  a  state  court  there 
may  also  be  united  a  motion  to  affirm  on  the  ground  that,  although 
the  record  may  show  that  the  court  has  jurisdiction,  it  is  manifest 
that  the  writ  was  sued  out  for  delay  only,  or  that  the  question  on 
which  the  jurisdiction  depends  is  so  frivolous  as  not  to  need  further 
argument.^  But  in  such  a  case,  if  there  is  no  color  of  right  to  dis- 
miss and  the  case  is  clearly  within  the  jurisdiction  of  the  court,  the 
motion  to  affirm  merely  will  be  denied.^  If  the  appeal  is  dismissed 
for  failure  of  the  appellant  to  file  a  transcript  in  due  time,  the  clerk 
cannot  properly  give  a  certificate  thereof  or  issue  a  mandate  thereon 
during  the  term,  as  the  appellant  may  thereafter  move  the  court  for 
leave  to  file  a  transcript  during  the  term,  and  to  have  the  cause  re- 
docketed.* 

If  the  court  below,  having  no  jurisdiction,  gives  a  judgment  in  a 
cause  for  either  party,  or  improperly  decrees  affirmative  relief  to  a 
claimant,  this  court  will  reverse  it,  and  not  merely  dismiss  the  suit. 
But  it  is  not  important  on  error  or  appeal  when  or  how  the  court 
below  obtained  jurisdiction.  It  is  sufficient  that?  it  had  jurisdiction 
at  the  time  the  judgment  or  decree  was  rendered,  even  though  ren- 
dered by  consent,  and  no  errors  of  law  will  be  considered  which 
were  waived  by  such  consent.^ 

§  349.  Mode  of  service  of  notice  and  proof — Service  of  the 
notice  of  a  motion  to  dismiss  may  be  made  on  counsel  by  mail ; 
and  an  affidavit  of  the  deposit  in  the  mail  of  the  notice  and  brief 

^  Gen.  Rule  6.  "  The  Bank  of  U.  S.  v.  Swan,  3  Pet. 

'^  Gen.  Rule  6,  as  amended  May  8,     68. 
1876,  November  4,  1878.  5  Pacific  Railroad  v.  Ketchum,  101 

3  Whitney  v.  Cook,  99  U.  S.  607.         U.  S.  2S9 ;  Removal  Cases,  100  U.  S. 

■lo7. 


2(8  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

or  argument  to  the  address  of  the  counsel  to  be  served,  duly  post- 
paid, at  such  time  as  to  reach  him  by  due  course  of  mail  three 
weeks  or  thirty  days,  as  the  case  may  require,  before  the  time  jBxed 
by  the  notice  for  a  hearing,  will  be  regarded  as  'prima  facie  evidence 
of  service  on  counsel  who  reside  without  the  District  of  Columbia ; 
and  on  proof  of  such  service  the  motion  will  be  considered,  unless 
for  satisfactory  reasons  further  time  be  given  by  the  court  to  either 
party.i 

§  350.  Procedure  in  case  of  diminution  of  record. — We  have  re- 
ferred to  certiorari  as  the  proper  remedy  in  case  of  diminution  of 
the  record  sent  up  to  this  court  in  case  of  a  writ  of  error  or  appeal.^ 
But  this  will  not  be  awarded  unless  a  motion  therefor  is  made  in 
writing,  and  the  facts  on  which  it  is  based  shall  be  verified  by  affi- 
davit or  admitted  by  the  opposite  party.  It  is  further  required 
that  all  motions  for  a  certiorari  shall  be  made  at  the  first  term  of 
the  entry  of  the  cause ;  otherwise  it  cannot  be  granted,  unless  upon 
special  cause  shown  to  the  court,  accounting  satisfactorily  for  the 
delay.^  A  return  to  a  certiorari  is  sufficient  if  made  by  the  clerk, 
without  being  signed  by  the  judge.*  If  there  appears  to  be  an 
omission  of  an  important  paper  from  the  record  sent  up,  which  may 
be  necessary  for  a  correct  decision  of  the  case,  the  court  may,  on 
its  own  motion,  order  the  case  continued  and  a  certiorari  to  be 
issued  to  bring  it  up.^ 

The  writ  of  certiorari  is  properly  used  in  such  cases  only  to  bring 
up  to  the  court  of  error  documents,  writings  and  other  portions  of 
the  record  which  have  not  been  sent  up,  and  it  cannot  be  used  to 
compel  the  Court  of  Claims  to  supply  certain  supposed  defects  in  its 
conclusions  deducible  from  the  evidence  before  it." 

For  form  of  writ  of  certiorari,  see  j^ost,  No.  260. 

§  351.  Where  either  party  dockets  the  case;  rights  of  appellee. — 
Either  party  may  docket  a  cause ;  and  if  docketed  and  a  copy  of 
the  record  is  filed  with  the  clerk,  either  by  the  plaintiff  in  error  or 

'  Gen.  Rule  6,  par.  5.  '  United  States  v.  Adams,  9  Wall. 

■^  Ante,  I  374.  661.     The  circuit  court  had  no  power 

^  Gen.  llule  14.  to  issue  a  writ  of  certiorari  to  a  com- 

*  Stewart    v.    Ingle.    9    Wh.    526;  missioner    appointed    by    the    court 

Worcester  v.  Georgia,  6  Pet.  515.  under  the  act  of  September  18,  1850, 

^  Morgan  V.  Curtenius,  19  How.  8.  he  being  in  no  legal  sense  a  magis- 

See  also  Ex  parte  Dugan,  2  Wall.  134  ;  trate  inferior  to  the  circuit  court :  Ex 

Clark «;.  Hackett,  1  Black  77  :  Stearns  parte  Van  Orden,  3  Biatch.  166. 

V.  United  States,  4  Wall.  1. 


SUPREME  COURT — APPELLATE  JURISDICTION.       279 

appellant,  within  the  time  prescribed  by  Rule  9,  or  by  the  defendant 
in  error  or  appellee  at  any  time  thereafter  during  the  term,  the  case 
stands  for  argument  during  the  term.^ 

§  352.  "When  the  state  is  a  party. — In  certain  cases  a  state  is 
entitled  to  priority  on  the  docket,  where  it  is  a  party  to  a  suit. 
Section  949  of  the  Revised  Statutes  provides :  "  When  a  state  is  a 
party,  or  the  execution  of  the  revenue  laws  of  a  state  is  enjoined  or 
stayed  in  any  suit  in  a  court  of  the  United  States,  such  state,  or 
the  party  claiming  under  the  revenue  laws  of  a  state  the  execution 
whereof  is  enjoined  or  stayed,  shall  be  entitled,  on  showing  sufficient 
reason,  to  have  the  cause  heard  at  any  time  after  it  is  docketed,  in 
preference  to  any  civil  cause  pending  in  such  court  between  private 
parties." 

Under  the  provisions  of  this  section,  if  the  state  is  plaintiff  merely 
ex  relatione^  the  cause  will  not  be  advanced  even  on  the  consent  of 
both  parties,  as  where  the  suit  is  in  the  name  of  a  state  and  in  the 
nature  of  a  quo  warranto  to  try  the  title  to  an  office.^  Nor  are  the 
ordinances  of  a  municipal  corporation  levying  taxes,  revenue  laws 
of  a  state  within  the  meaning  of  the  statute,  and  a  case  arising 
under  them  is  not  entitled  to  priority  on  the  docket.^ 

Nor  will  preference  be  given  to  cases  in  which  the  execution  of 
the  revenue  laws  of  a  state  is  enjoined,  unless  it  satisfactorily  ap- 
pears that  the  operations  of  the  government  of  the  state  will  be 
embarrassed  by  the  delay.  The  court  may  determine,  under  all  the 
circumstances  of  the  case,  what  is  a  "sufficient  reason"  for  the 
preference  given  by  the  statute.*  The  motion  for  the  advancement 
of  a  cause  under  the  statute  must  be  made  by  a  state  or  by  a  party 
claiming  under  the  laws  of  a  state.'' 

Where  a  person  was  indicted  and  convicted  in  one  of  the  inferior 
courts  of  the  state  of  Maryland  for  trading  without  having  a  license 
as  required  by  the  laws  of  that  state,  and  the  judgment  was  affirmed 
in  the  court  of  appeals  of  that  state,  and  brought  to  this  court  on  a 
writ  of  error,  where  a  motion  was  made  by  the  plaintiff  in  error  to 
advance  the  cause,  it  was'  held  that  the  motion  was  not  within  the 
foregoing  statute,  as  the  motion  was  not  filed  by  the  state  nor  by  a 
party  claiming  under  the  laws  of  the  state;   that  under  the  26th 

1  Gen.  Rule  9,  par.  2.  *  Hoi^e   v.  Railway   Co.,   93   U.   S. 

-  Miller  v.  State,  12  Wall.  159.  1. 

•''  Davenport  City  v.  Dows,  15  Wall.         *  Ward  v.  State,  12  Wall.  163. 
391). 


280  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE.. 

rule  of  the  court  it  was  a  motion  addressed  to  its  discretion,  and 
that  inasmuch  as  it  appeared  that  the  phiintiff  in  error  was  not  in 
jail,  the  court  refused  to  grant  the  motion.^ 

And,  as  we  have  observed,  the  statute  does  not  apply  to  the  ordi- 
nances of  a  municipal  corporation,  as  they  cannot  be  classed  as 
revenue  laws  of  a  state ;  and  the  preference  given  to  the  state 
when  it  is  a  party,  or  when  its  revenues  are  enjoined,  to  any  party 
claiming  under  such  laws,  is  from  the  presumed  importance  of  such 
cases  to  the  internal  welfare  of  such  state  and  because  of  its  dig- 
nity  as  a  member  of  the  Union,  and  these  reasons  for  the  prefer- 
ence do  not  apply  to  municipal  more  than  to  private  corporations.^ 

§  353.  Submission  of  causes  on  printed  arguments. — Causes  may 
be  submitted  to  the  court  on  printed  arguments,  where  counsel  on 
both  sides  choose  to  do  so,  within  the  first  ninety  days  of  the  term ; 
but  in  such  cases  twenty  copies  of  the  arguments,  signed  by  at- 
torneys and  counsellors  of  this  court,  must  be  first  filed, — ten  copies 
for  the  court,  two  for  the  reporter,  three  to  be  retained  by  the  clerk, 
and  the  residue  for  counsel.  And  if  a  case  is  reached  on  a  regular 
call  of  the  docket,  and  a  printed  argument  shall  be  filed  for  one  or 
both  parties,  the  case  stands  on  the  same  footing  as  if  there  were 
an  appearance  by  counsel.  But  if  a  case,  under  such  circum- 
stances, is  argued  orally  on  behalf  of  one  party  only,  a  printed 
argument  on  behalf  of  the  other  party  will  not  be  received  unless 
it  is  filed  before  the  argument  begins,  and  if  none  is  filed,  the  court 
will  consider  and  decide  the  case  upon  the  ex  parte  argument;  and 
no  brief  or  argument  will  be  received,  through  the  clerk  or  other- 
wise, after  the  case  has  been  argued  and  submitted,  except  after 
notice  to  the  opposite  party,  and  upon  leave  granted  in  open  court.'* 

§  354.  Call  of  the  docket. — The  mode  of  procedure  on  a  call  of 
the  docket  is  pointed  out  by  the  rules  of  the  court.  The  call  com- 
mences on  the  second  day  of  the  term,  and  cases  will  be  taken  up 
for  argument  in  the  order  they  stand  on  the  docket,  if  the  parties 
or  either  of  them  are  ready  when  the  cases  are  called.  If  neither 
party  is  ready,  the  case  will  go  down  to  the  foot  of  the  docket ;  but 
only  ten  causes  will  be  considered  as  liable  to  be  called  each  day, 
including:  the  one  under  ar^iument.- 

'  Ward  V.  Maryland,  12  Wall.  163.  ''  Gen.  Rule  20. 

-  Davenport  City  v.  Dows,  15  Wall.         *  Gen.  Rule  26. 
390. 


SUPREME    COURT — APPELLATE   JURISDICTION.  281 

Criminal  cases,  however,  may  be  advanced,  on  motion  of  either 
party,  by  leave  of  court;  and  revenue  cases  in  which  the  United 
States  are  concerned,  which  also  involve  or  affect  some  matter 
of  general  public  interest,  may  also,  by  leave  of  court,  be  advanced 
on  motion  of  the  Attorney-General ;  but  all  motions  to  advance  cases 
must  be  printed,  and  must  contain  a  brief  statement  of  the  matter 
involved,  with  the  reasons  for  the  application.^  No  other  cause  will 
be  taken  up  out  of  the  order  on  the  docket,  or  be  set  down  for  any 
particular  day,  except  under  special  and  peculiar  cicumstances  to 
be  shown  to  the  court ;  and  every  cause  which  shall  have  been 
called  in  its  order  and  passed,  and  placed  at  the  foot  of  the  docket, 
will,  if  not  reached  again  during  the  term,  be  continued  to  the 
next  term.  But  after  a  cause  has  been  passed,  under  circumstances 
which  do  not  require  it  to  be  placed  at  the  foot  of  the  docket,  the 
parties  may  have  it  heard  by  filing  with  the  clerk  a  joint  request 
to  that  effect.  The  clerk  must  then  reinstate  the  case  for  call  ten 
cases  after  the  case  under  argument,  or  next  to  be  called  at  the  end 
of  the  day  the  request  is  filed.  If  the  parties  will  not  unite  in  such 
a  request,  then  either  party  may  move  to  take  up  the  cause,  and  it 
will  then  be  assigned  to  such  a  place  on  the  docket  as  the  court 
may  direct.  But  no  stipulation  to  pass  a  cause  Avithout  placing  it 
at  the  foot  of  the  docket  will  be  recognized  as  binding  upon  the 
court,  and  a  cause  can  otherwise  be  passed  only  upon  an  application 
made  for  that  purpose,  and  by  leave  granted  in  open  court.^  Two 
or  more  cases  involving  the  same  question  may,  however,  by  leave 
of  court,  be  heard  together,  but  they  must  be  argued  as  one  case.^ 

§  355.  The  argument ;  preparation  for  the  same ;  procedure  on. — 
Only  two  counsel  will  be  heard  for  each  party  on  the  argument  of 
a  cause,  and  only  tAvo  hours  on  each  side  will  be  allowed  for  argu- 
ment, unless  by  special  leave  of  the  court,  granted  before  the  argu- 
ment begins.  This  time  may  be  apportioned  between  the  counsel  in 
their  discretion ;  but  there  must  be  a  fair  opening  of  the  case  by 
the  party  having  the  opening  and  closing  arguments. 

At  least  six  days  before  the  argument,  the  counsel  for  the  plain- 
tiff in  error  or  appellant  is  required  to  file  with  the  clerk  of  the 

^  Gen.  Rule  26.    If  a  cause  has  been  portance  have  been  assigned  for  what 

placed  at  the  foot  of  the  docket,  the  may  be  the  remainder  of  the  term : 

court  will  not  take  it  up  on   motion  Berry  v.  Mercein,  4  How.  574. 

and   assign   a  day  for  its  argument,  '^  Gen.  Rule  26,  par.  7. 

when  other  cases  of  great  public  im-  ^  Id.,  par.  6. 


282  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

court  twenty  copies  of  a  printed  brief,  one  of  wliich  on  application 
he  is  required  to  furnish  to  each  of  the  counsel  engaged  upon  the 
other  side.  This  brief  is  required  to  contain,  and  in  the  order 
hereinafter  stated — 

1.  A  concise  absti  act  or  statement  of  the  case,  presenting  suc- 
cinctly the  questions  involved  and  the  manner  in  which  they  are 
raised. 

2.  An  assignment  of  the  errors  relied  upon,  which,  in  cases  brought 
up  by  writ  of  error,  shall  set  out  separately  and  specifically  each 
error  asserted  and  intended  to  be  urged,  and  in  cases  brought  up  by 
appeal  the  assignment  shall  state,  as  specifically  as  may  be,  in  what 
the  decree  is  alleged  to  be  erroneous.  If  error  is  assigned  to  a 
ruling  upon  the  report  of  a  master,  the  specification  shall  state  the 
exception  to  the  report  and  the  action  of  the  court  upon  it. 

3.  A  brief  of  the  argument,  exhibiting  a  clear  statement  of  the 
points  of  law  or  fact  to  be  discussed,  with  a  reference  to  the  pages 
of  the  record,  and  the  authorities  relied  upon  in  support  of  each 
point.  When  the  statute  of  a  state  is  cited,  so  much  thereof  as  may 
be  deemed  necessary  to  the  decision  of  the  case  shall  be  printed  at 
length. 

4.  When  the  error  alleged  is  to  the  charge  of  the  court,  the 
specification  shall  set  out  the  part  referred  to  tofidein  verbis, 
whether  in  the  instructions  given  or  instructions  refused. 

5.  When  the  error  alleged  is  to  the  admission  or  to  the  rejection 
of  evidence,  the  specification  shall  quote  the  full  substance  of  the 
evidence  admitted  or  rejected. 

6.  Counsel  for  a  defendant  in  error,  or  appellee,  shall  file  with 
the  clerk  twenty  printed  copies  of  his  argument,  at  least  three  days 
before  the  case  is  called  for  a  hearino;.  His  brief  shall  be  of  a  like 
character  with  that  required  of  the  plaintiff  or  appellant,  except.no 
assignment  of  error  is  required,  and  no  statement  of  the  case  unless 
that  presented  by  the  plaintiff  or  appellant  is  controverted. 

7.  Without  such  an  assignment  of  errors,  counsel  will  not  be 
heard  except  at  the  request  of  the  court,  and  errors  not  assigned 
according  to  this  rule  will  be  disregarded,  though  the  court,  at  its 
option,  may  notice  a  plain  error  not  assigned. 

8.  When,  according  to  this  rule,  the  plaintiff  in  error  or  appel- 
lant is  in  default,  the  case  may  be  dismissed  on  motion,  and  when 
a  defendant  in  error  or  an  appellee  is  in  default,  he  will  not  be 


SUPREME    COURT — APPELLATE    JURISDICTION.  283 

lieard  except  on  consent  of  his  adversary  and  with  request  of  the 
court. 

9.  When  no  counsel  appears  for  one  of  the  parties,  and  no 
printed  brief  or  argument  is  filed,  only  one  counsel  Avill  be  heard 
for  the  adverse  party ;  but  if  a  printed  brief  or  argument  is  filed, 
the  adverse  party  will  be  entitled  to  be  heard  by  two  counsel.^ 

The  plaintiif  or  appellant  is  entitled  to-  the  opening  and  closing 
argument,  except  when  there  are  cross  appeals,  when  they  are 
required  to  be  argued  together,  and  the  plaintiff  in  the  court  below 
is  entitled  to  open  and  conclude  the  argument.^ 

§  356.  Judgment  on  review. — This  court  may,  on  review  of  any 
judgment,  decree  or  order  of  the  circuit  court  or  the  district  court  act- 
ing as  a  circuit  court,  or  in  prize  cases,  affirm,  modify  or  reverse  it,  or 
may  direct  such  judgment,  decree  or  order  to  be  rendered,  or  such 
further  proceedings  to  be  had  by  the  inferior  court  as  the  justice  of 
the  case  may  require.  But  the  court  is  prohibited  from  issuing 
executions  in  such  cases,  and  is  required  to  send  a  mandate  to  the 
court  below  to  award  execution  on  the  judgment.^  There  is,  how- 
ever, a  discretion  in  the  court  in  respect  to  giving  a  judgment  and 
awarding  execution  in  case  of  a  writ  of  error  to  a  state  court.  In 
such  a  case  it  may  proceed  to  a  final  decision  and  award  the  exe- 
cution or  remand  the  same  to  the  court  from  which  the  case  was 
removed.* 

The  practice  and  power  of  this  court  in  such  cases  may  be  illus- 
trated by  its  procedure  in  a  recent  case.  In  Insurance  Companies 
V.  Boykin,^  the  defendant  in  error  brought  a  suit  on  a  policy  of  in- 
surance for  a  loss  sustained.  The  policy  was  signed  by  four  com- 
panies who  were  made  defendants,  each  of  whom  had  agreed  to 
become  liable  for  one-fourth  of  any  loss  to  the  extent  in  all  of 
ten  thousand  dollars,  and  the  plaintiffs  in  error  had  consented  that 
the  action  might  be  brought  against  all  of  them  jointly  instead  of 
severally.  The  verdict  of  the  jury  was  "that  said  defendants  did 
promise  and  assume  as  said  plaintiff  hath  alleged,  and  they  assess  the 
damages  of  the  said  plaintiff  at  ten  thousand  dollars,  with  interest  from 
the  20th  of  March,  1867,"  and  the  court  rendered  a  joint  judgment 
accordingly.     This  was  one  of  the  errors  assigned  in  this  court. 

1  Gen.  Rule  21.  *  Rev.  Stat.  709,  amended  February 

2  Gen.  Rule  22.  18.  1875. 

•'  Rev.  Stat.  §  701.  M2  Wall.  433. 


284  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE.      . 

It  was  here  held  that  the  verdict  was  a  good  one,  but  that  the  court 
ought  to  have  rendered  a  judguicnt  that  the  plaintiff  recover  of 
each  of  the  defendants  severally  for  the  one-fourth  part  of  the 
ten  thousand  dollars,  and  interest  from  the  time  mentioned  in  the 
verdict,  and  joint  judgment  against  all  of  the  defendants  for  costs. 
And  this  court  entered  the  judgment  which  the  circuit  court  should 
have  done. 

It  is  the  usual  practice  of  this  court  to  dismiss  a  cause  where  the 
court  below  had  no  jurisdiction  of  it.  But  this  in  some  cases  would 
work  injustice,  as,  for  instance,  where  the  inferior  court  has  given 
a  judgment  or  decree  for  plaintiff,  or  improperly  decreed  affirmative 
relief  to  a  claimant  in  a  case  where  it  had  no  jurisdiction.  "  In 
such  a  case  the  judgment  or  decree  of  the  court  below  must  be 
reversed,  else  the  party  which  prevailed  there  would  have  the  benefit 
of  such  judgment  or  decree,  though  rendered  by  a  court  which  had 
no  authority  to  hear  and  determine  the  matter."^  In  such  a  case 
the  judgment  or  decree  should  be  reversed  for  want  of  jurisdiction, 
and  the  cause  remanded  with  directions  to  dismiss  the  case.^ 

§  357.  Judgment  >Arhere  there  are  errors  apparent  in  the  record. — 
Where  there  is  manifest  error  apparent  on  the  face  of  the  record 
a  re-examination  in  this  court  will  be  had,  whether  it  appears  by  a 
bill  of  exceptions  or  otherwise.  Whatever  the  error  may  be,  the 
facts  must  appear  on  the  record  in  order  to  enable  the  court  to 
review  the  case  ;  but  neither  a  bill  of  exceptions  nor  a  special  verdict 
nor  an  agreed  case  is  always  necessary  in  order  to  make  the  error 
apparent  to  a  court  of  review.  The  error  may  otherwise  appear, 
and  where  it  is  thus  manifest,  this  court  will  consider  and  revise  the 
judgment.  Thus,  where  a  suit  was  brought  on  a  policy  of  insur- 
ance on  a  vessel  and  cargo  for  a  total  loss,  and  the  jury  found  a 
verdict  for  the  whole  amount  insured  with  interest,  and  five  thousand 
dollars  damages  besides  for  the  detention  of  the  money  and  interest, 
and  judgment  was  entered  therefor,  on  error,  it  was  held  that 
the  plaintiff  below  could  not  recover  damages  beyond  the  legal 
interest ;  that  the  error  did  not  require  a  venire  de  novo,  as  it  con- 
sisted in  giving  judgment  for  the  five  thousand  dollars  damages. 
This  court  therefore  reversed  and  modified  the  judgment  by  disal- 
lowing the  five  thousand  dollars,  and  the  cause  was  remanded  with 

'  United  States  v.   Huckabeer,    16        -  Cutler  v.  Rae,  7  How,  729. 
Wall.  414. 


SUPREME    COURT — APPELLATE   JURISDICTION.  285 

directions  to  enter  judgment  for  the  residue  found  by  the  jury  with 
interest.^ 

§  358.  Judgment;  interest;  damages. — Where  the  judgment  of 
the  inferior  court  is  affirmed  on  a  writ  of  error,  interest  on  the  same 
at  the  same  rate  that  similar  judgments  bear  interest  in  the  state 
where  the  judgment  is  rendered  is  allowed  from  the  date  of  the 
judgment  below  until  it  is  paid.^  And  "in  all  cases  where  a  writ 
of  error  shall  delay  the  proceedings  of  the  judgment  of  the  inferior 
court,  and  shall  appear  to  have  been  sued  out  merely  for  delay, 
damages  at  the  rate  of  ten  per  cent.,  in  addition  to  interest,  shall 
be  awarded  upon  the  amount  of  the  judgment."^  And  "the  same 
rule  is  applied  to  decrees  for  the  payment  of  money  in  cases  in 
chancery,  unless  otherwise  ordered  by  this  court."*  But  interest 
is  not  generally  allowed  in  admiralty  cases. ^ 

§  359.  Where  the  verdict  is  clearly  right,  the  court  will  not 
reverse  for  technical  inaccuracies  in  the  charge. — Where  there  is 
no  evidence  to  impeach  the  claim  made,  and  it  is  established  by 
competent  evidence,  and  there  is  no  set-off,  counter-claim,  release 
or  payment  pleaded  or  shown,  the  court  may  instruct  a  jury  to 
find  for  the  plaintiff  the  amount  so  proven,  as  such  an  instruction 
is  in  accordance  with  the  legal  effect  of  the  evidence,  and  there 
would  be  no  disputed  facts  on  which  the  jury  could  pass.*"  And  if 
it  clearly  appears  in  any  case  that  there  are  no  disputed  facts  bear- 
ing on  the  real  matters  in  issue,  and  the  verdict  is  manifestly  right, 
and  especially  where  the  record  shows  that  no  other  result  would 
be  obtained  by  a  new  trial,  this  court  will  not  reverse  the  case, 
although  there  may  have  been  some  technical  inaccuracies  in  the 
instructions  given  to  the  jury.*" 

§  360.  When  a  new  trial  will  be  awarded. — Under  the  sanction 
of  the  Revised  Statutes  allowing  this  court,  on  a  review  of  a  judg- 
ment or  decree  of  the  inferior  court,  to  direct  "  such  further  pro- 
ceedings to  be  had  by  the  inferior  court  as  the  justice  of  the  case 
may  require,"  this  court  may,  unquestionably,  direct  a  trial  to  be 

^  Insurance  Co.  v.  Piaggio,  16  Wall.  ^  Id.,  par.  2. 

378  :  Suydam  v.  Williamson,  20  How.  *  Id.,  par.  3. 

427  ;  Burnett  v.  Butterworth,  1 1  How.  *  Ilemmenway  v.  Fisher,  20  How. 

t)t39 ;  Slocum  v.  Pomeroy,  6  Cr.  221  ;  255. 

Garland  v.  Davis,  4  How.  131 ;  Cohens  *  Bevans  v.  United  States,  13  Wall. 

V.  Virginia,  6  Wh.  410.  56. 

-'  Gen.  Rule  23,  par.  1.  "^  Walburn  v.  Babl)itt,  16  Wall.  577. 


286  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

had  de  novo,  where  in  its  opinion  justice  requires  it.  This  was  the 
practice  under  the  Judiciary  Act,  and  is  in  accordance  with  the 
practice  at  common  law  where  the  record  did  not  furnish  facts  upon 
which  to  base  a  judgment.  In  such  a  case  the  statutes  would  re- 
quire this  court,  in  the  exercise  of  its  proper  functions  as  an  appel- 
late court,  and  in  furtherance  of  justice,  to  remand  the  cause  for  a 
new  trial.  If  there  is  a  demurrer  to  evidence,  there  should  be  a 
joinder  in  demurrer,  and  this  supposes  that  the  facts  are  admitted ; 
the  proper  function  of  such  a  demurrer  being  to  submit  to  the  court 
the  law  arising  from  the  facts.  The  party  demurring  to  the  evi- 
dence cannot  insist  upon  a  joinder  in  demurrer,  under  the  common 
law  practice,  without  distinctly  admitting  upon  the  record  every 
fact  and  every  conclusion  which  the  evidence  given  for  the  adverse 
party  conduces  to  prove ;  and  if  there  should  be  a  joinder  in  the 
demurrer,  without  such  admission  and  a  judgment  thereon,  the 
judgment  would  be  reversed  for  this  cause,  and  in  such  a  case 
this  court  would  necessarily  have  to  remand  the  cause  for  a  new 
trial.^  So,  where  the  special  verdict  of  a  jury  is  too  imperfect  to 
enable  the  court  to  render  a  judgment  upon  it,  although  it  may 
reverse  the  judgment  of  the  court  below,  it  will  remand  the  cause, 
with  directions  to  set  aside  the  verdict  and  award  a  vetiire  facias 
de  710V 0.^ 

§  361.  When  a  cause  -will  be  remanded  for  amendments. — In  an 
action  on  the  case,  there  was  a  plea  of  "non  assumpsit,"  and  the 
issue  and  verdict  followed  the  plea.  On  error,  it  was  held  by  this 
court  that  this  defect  was  a  material  one  and  not  cured  by  the  ver- 
dict ;  that  it  did  not  contain  enough  of  substance  to  put  in  issue  the 
material  parts  of  the  declaration  ;  that  the  judgment  on  the  verdict 
was  not  properly  rendered ;  and  although  this  court  would  not  direct 
amendments  or  a  repleader,  it  reversed  the  judgment  and  remanded 
the  case  for  further  proceedings.^  A  new  trial  has  sometimes  been 
awarded  in  courts  of  error  to  enable  parties  to  amend,*  and  in  one 
case  this  court  not  only  reversed  a  judgment  and  awarded  a  venire 
de  novo,  but  gave  "  directions   also  to  allow  the  parties  liberty 

1  Gibson  v.  Hunter,  2  H.  Bl.  187  ;  ^  Garland  v.  Davis,  4  How.  131 ;  Day 

Fowle   V.   Alexandria,   11  Wh.   320;  r.  Chism,  10  Wh.  404. 

Bank  of    U.    S.    v.    Smith,    11    Wh.  *  United  States  y.  Hawkins,  10  Pet. 

171.  125  ;  Barnes  v.  Williams,  11  Wh.  416  ; 

^  McArthur  v.  Porter,  1  Pet.  626.  Bellows  j?.  Bank,  2  Mason  31  ;  Peter- 
See  also  Farr  v.  United  States,  5  Pet.  son  v.  United  States,  2  Wash.  (C.  C.) 
373 ;  Graham  v.  Bayne,  18  How.  60.  30. 


SUPREME    COURT — APPELLATE    JURISDICTION.  287 

to  amend  their  pleadings."^     For  forms  of  judgments  and  decrees, 
see  i^ost,  Nos.  245,  246,  248,  et  seq.     See  also  Nos.  252,  253. 

§  362.  The  mandate. — It  will  be  noticed  that  the  Supreme  Court, 
in  the  excercise  of  its  jurisdiction  on  appeals  from  the  inferior 
federal  courts,  does  not  possess  the  power  to  execute  its  judgments 
except  in  certain  cases.  It  can  only  send  a  special  mandate  to  the 
inferior  federal  court  to  award  execution. 

But  on  a  writ  of  error  to  a  state  court,  as  we  have  noticed,^  this 
court  "  may  reverse,  modify  or  affirm  the  judgment  or  decree  of 
such  state  court,  and  may  at  their  discretion  award  execution." 
For  form  of  mandate,  see  post,  Nos.  247,  251. 

§  363.  Mandate  conclusive  upon  the  court  below. — The  court  to 
which  the  mandate  is  directed  must  execute  it  according  to  its  direc- 
tions and  the  intentions  of  this  court.  Where  the  mandate  is  uncer- 
tain and  ambiguous  in  its  terms,  the  court  to  which  it  is  directed 
must  exercise  its  judgment  in  the  matter  in  the  light  of  the  opinion 
and  decision  of  this  court  and  the  reason  and  justice  of  the  case. 
The  authority  of  this  court  or  the  jurisdiction  of  the  inferior  court 
to  try  the  cause  cannot  be  inquired  into.  Where  the  merits  of  the 
controversy  are  decided,  and  the  mandate  requires  the  execution  of 
the  decision,  it  is  final. ^  Nor  will  a  mandamus  in  the  nature  of  a 
procedendo  be  granted  thereafter  by  the  Supreme  Court,  to  the 
judge  of  the  court  below,  to  compel  him  to  sign  a  bill  of  exceptions 
in  the  case,*  nor  can  such  court  entertain  a  petition  for  a  rehearing 
of  the  case  after  a  decision  of  the  Supreme  Court  and  the  issue 
of  a  special  mandate  for  its  execution,  as  the  court  has  no  authority 
to  disturb  the  final  judgment  or  decree  of  the  Supreme  Court,  and 
can  only  settle  what  remains  to  be  done,  by  the  execution  of  the 
mandate.^ 

§  364.  The  mandate  may  be  revoked. — Notwithstanding  the 
court  below  cannot  question  the  authority  of  the  Supreme  Court 
in  issuing  the  mandate,  or  disobey  its  requirements,  the  Supreme 
Court  may,  in  a  proper  case,  declare  the  judgment  rendered  by  it 
null  and  void,  and  revoke  the  mandate.  Thus,  where  an  appeal 
from  a  circuit  court  Avas  prosecuted,  and  a  decree  was  rendered 

^  United    States    v.   Kilpatrick,     9  parte  Story,  12  Pet.   339 ;    Ex  parte 

Wh.  73U ;  Mollan  v.  Torrance,  9  Wh.  Dubuque,  etc.,  R.  Co.,  1  Wall.  69. 

537.  *  Ex  parte  Story,  supra. 

2  See  ante,  ?  350 ;  Rev.  Stat.  §  709.  *  Chaires  v.  United  States,  3  How. 

^Skillern    v.  May,  6   Cr.  267;   Ex  611. 


288  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

against  the  appellee  without  an  appearance  on  his  part,  and  a  man- 
date was  issued  to  the  circuit  court,  and  at  a  subsequent  term  it 
■was  made  to  appear  that  there  had  been  no  citation  served  upon 
the  appellee,  the  court  declared  the  former  judgment  null  and  void, 
and  the  mandate  was  revoked.^ 

This  practice  was  followed  in  the  subsequent  case  of  United  States 
V.  Gomez. ^  The  cause  was  docketed  and  dismissed  on  motion  of 
the  appellee  and  remanded,  and  a  mandate  sent  down  to  the  court 
below.  A  motion  was  afterwards  made  in  the  Supreme  Court  for 
the  rescision  of  the  order  of  dismission  and  for  a  recall  of  the  man- 
date; and  the  court  being  satisfied  from  the  evidence  before  it  that 
no  appeal  in  the  case  had  been  granted  by  the  court  below,  and 
that  the  cause  was  not  properly  before  it  when  it  was  remanded 
at  the  instance  of  the  appellee,  it  rescinded  and  annulled  the  decree 
of  dismissal  and  revoked  and  cancelled  the  mandate.  For  form  of 
decree  in  such  a  case,  see  post,  No.  252. 

§  3b5.  Costs  on  aflirmance,  reversal,  dismissal. — By  the  24th 
rule,  costs  are  allowed  to  the  defendant  in  error  or  appellee,  as 
the  case  may  be,  in  all  cases  of  dismissal,  except  where  the  dis- 
missal is  for  the  want  of  jurisdiction,  unless  otherwise  agreed  by  the 
parties ;  and  in  all  cases  of  the  affirmance  of  the  judgment  or  de- 
cree of  the  inferior  courts,  costs  shall  be  allowed  to  the  defendant 
in  error  or  appellee,  as  the  case  may  be,  unless  otherwise  ordered 
by  the  court.  But  in  case  of  a  reversal  of  any  such  judgment  or 
decree,  costs  are  allowed  to  the  plaintiff  in  error  or  appellant,  as 
the  case  may  be,  unless  otherwise  ordered  by  the  court ;  and  the 
costs  of  the  transcript  of  the  record  are  a  part  of  such  costs. 
These  provisions,  however,  do  not  apply  to  cases  where  the  United 
States  are  a  party.  In  such  cases  no  costs  will  be  allowed  in  this 
court  for  or  against  the  United  States.^ 

In  case  any  suit  is  dismissed  in  this  court,  it  is  the  duty  of  the 
clerk  to  issue  a  mandate  or  other  proper  process,  in  the  nature  of  a 
procedendo,  to  the  court  below,  for  the  purpose  of  informing  such 
court  of  the  proceedings  of  this  court,  so  that  such  further  pro- 
ceeding may  be  had  therein  as  law  and  justice  may  require ;  and 
it  is  his  duty  also  to  insert  in  such  mandate  or  other  proper  pro- 
cess any  costs  that  may  be  allowed  in  this  court,  and  annex  to  it  a 
bill  of  items  of  such  costs  taxed  in  detail.* 

^  Ex  parte  Crenshaw,  15  Pet.  119.  ^  Gen.  Rule  24,  paragraphs  1,  2,  3. 4. 

-  23  How.  326  (1859).  *  Gen.  Rule  24,  paragraphs  5,  6.  ' 


SUPREME   COURT — APPELLATE   JURISDICTION.  289 

§  3G6.  Recording  the  opinions. — The  opinion  of  the  court,  upon 
the  delivery  thereof,  must  be  recorded  by  the  clerk  immediately : 
and  it  is  his  duty  to  furnish  the  reporter  with  a  copy  of  the  same 
as  soon  as  it  shall  be  recorded.  This  is  required  to  be  done  dur- 
ing the  term,  in  order  to  avoid  delay  in  the  publication  of  the 
reports.  The  original  opinions  must  be  filed  with  the  clerk  for 
preservation. 

The  statute  further  expressly  provides  that  "  where,  upon  a  writ 
of  error,  judgment  is  affirmed  in  the  Supreme  Court  or  a  circuit 
court,  the  court  shall  adjudge  to  the  respondent  in  error  just  dam- 
ages for  his  delay,  and  single  or  double  costs  at  its  discretion;"^ 
and  that  "  there  shall  be  no  reversal  in  the  Supreme  Court  or  in  a 
circuit  court  upon  a  writ  of  error,  for  error  in  ruling  any  plea  in 
abatement,  other  than  a  plea  to  the  jurisdiction  of  the  court,  or  for 
any  error  in  fact."- 

If  the  writ  is  sued  out  merely  for  delay,  damages  will  be  allowed 
at  the  rate  of  not  exceeding  ten  per  cent,  from  the  date  of  the  judg- 
ment in  the  circuit  court  ;^  but  damages  for  more  than  that  sum 
cannot  be  given.*  If  every  question  involved  in  the  case  has  been 
settled  by  former  adjudications,  this  is  satisfactory  evidence  that 
the  writ  has  been  sued  out  for  delay,  and  damages  will  be  allowed 
therefor.^  But  damages  for  a  delay  cannot  be  allowed  on  the  affirm- 
ance of  a  decree  in  admiralty.^ 

§  367.  Rehearing. — There  is  no  statute  or  rule  of  court  provid- 
ing for  a  rehearing  of  a  cause  in  the  Supreme  Court,  and  it  has 
been  held  that  the  court  has  no  authority  to  reverse  its  own  de- 
cisions 'f^  yet,  as  we  have  seen,  it  has  frequently  exercised  a  revisory 
power  over  them,  where  it  had  no  jurisdiction  in  fact,  but  had  been 
induced  to  assume  jurisdiction  by  fraud  or  mistake.^ 

It  has  been  further  held  that  the  practice  in  the  English  chancery 

1  Rev.  Stat.  §  1010 ;  Winchester  v.  Pickersgill,  6  Wall.  511  ;  Hall  v.  Jor- 

.Jackson,  3  Cr.  514  ;   Himely  v.  Rose,  dan,  19  Id.  271  ;  Hennessy  v.  Sheldon, 

5  Id.  313  ;  Mclver  v.  Wattles,  9  Wh.  12  Id.  440. 

650 ;  Kilburn  v.  State  Savings  Inst.,         *  West  Wisconsin  R.  Co.  v.  Foley, 

22  How.  503 ;  Hennessy  v.  Sheldon,  94  U.  S.  100. 
12  Wall.  440.  5  Penywit  v.  Eaton,  15  Wall.  380, 

■'  Rev.  Stat.  ^1011.     See  Stafford  v.  382. 
Union  Bank,  16  How.  135.  «  The  Douro,  3  Wall.  564. 

^  Gen.  Rule  23,  par.  2;  Kilbourne        '  Jackson  v.  Ashton,  10  Pet.  480. 
V.  State  Savings  Inst.,  22  How.  503  ;        '  Ex  parte  Crenshaw,  15  Pet.  119  ; 

Sutton  V.  Bancroft,  23  Id.  320 ;  .Jen-  United  States  v.  Gomez,  23  How.  326. 
kins  V.  Banning,  Id.  455 ;  Prentice  v. 
19 


290  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

courts  relating  to  a  rehearing  has  no  application  to  this  court  sit- 
ting as  an  appellate  tribunal,  as  the  nature  and  office  of  the  two 
tribunals  are  different,  and  the  same  rules  of  practice  for  a  re- 
hearing would  not  be  applicable  to  both.^ 

The  Supreme  Court  has,  however,  in  several  cases  allowed  a  rehear- 
ing, and  in  1852,  in  the  case  last  cited,  the  court  ruled :  "  That  no 
reargument  will  be  heard  in  any  case  after  judgment  is  entered, 
unless  some  member  of  the  court  who  concurred  in  the  judgment 
afterwards  doubts  the  correctness  of  his  opinion  and  desires  a  further 
argument  on  the  subject.  And  when  that  happens,  the  court  will 
of  its  own  accord  apprise  the  counsel  of  its  wishes  and  designate 
the  points  on  which  it  desires  to  hear  them."^  In  1869  this  rule 
was  extended  so  as  to  allow  counsel  to  apply  for  a  rehearing,  in  case 
the  court  does  not  order  one.  This  rule,  contained  in  an  opinion 
of  the  court  by  Chief  Justice  Chase,  is  as  follows :  "  Where  the 
.court  does  not  on  its  own  motion  order  a  rehearing,  it  will  be 
proper  for  counsel  to  submit  without  argument,  as  has  been  done 
in  the  present  instance,  a  brief  written  or  printed  petition  or  sug- 
igestion  of  the  point  or  points  thought  important.  If  upon  such  pe- 
tition or  suggestion  any  judge  who  concurred  in  the  decision  thinks 
proper  to  move  for  a  rehearing,  the  motion  will  be  considered. 
If  not  so  moved,  the  rehearing  will  be  denied  as  of  course."^ 

§  368.  Adjournments. — Rule  27  provides:  "The  court  will  at 
every  session  announce  on  what  day  it  will  adjourn  at  least  ten 
days  before  the  time  which  shall  be  fixed  upon ;  and  the  court  will 
take  up  no  case  for  argument,  nor  receive  any  case  upon  printed 
briefs,  within  three  days  next  before  the  day  fixed  upon  for  adjourn- 
ment." 

§  369.  Dismissal  in  vacation  ;  duties  of  clerk. — Parties  to  a  Suit 
in  this  court  may  have  it  dismissed  in  vacation.  The  attorneys  of 
the  respective  parties  who  are  entered  on  the  record  for  this  pur- 
pose may  sign  an  agreement  in  writing,  directing  the  clerk  to 
dismiss  the  case,  and  specifying  the  terms  on  which  it  may  be  dis- 
missed as  to  costs.  After  filing  this  with  the  clerk  and  the  payment 
of  the  fees  which  maybe  due  him  in  the  cause,  it  is  his  duty  to  enter 
the  case  dismissed,  and  to  give  either  party  requesting  it  a  copy  of 

1  Brown  v.  Aspdon,  14  How.  25.  ^  Public  Schools  v.  Walker,  9  Wall. 

*  Brown  v.  Aspden,  supra :  United     603. 
■States  V.  Knight,  1  Black  489. 


SUPKEME    COURT — APPELLATE   JURISDICTION.  291 

the  agreement  filed  with  him ;  but   no  mandate  or  other  process 
can  issue  thereon  without  an  order  of  the  court.^ 

§  370.  The  record  on  appeal  from  the  Court  of  Claims. — On  appeal 
from  the  Court  of  Claims,  cases  are  heard  upon  the  record,  which 
must  contain — 

"  1.  A  transcript  of  the  pleadings  in  the  case,  of  the  final  judg- 
ment or  decree  of  the  court,  and  of  such  interlocutory  orders, 
rulings,  judgments  and  decrees  as  may  be  necessary  to  a  proper 
review  of  the  case. 

"  2.  A  finding  by  the  Court  of  Claims  of  the  facts  in  the  case  es- 
tablished by  the  evidence  in  the  nature  of  a  special  verdict,  but  not 
the  evidence  establishing  them  ;  and  a  separate  statement  of  the 
conclusions  of  law  upon  said  facts  on  which  the  court  founds  its 
judgment  or  decree.  The  finding  of  facts  and  conclusions  of  law 
to  be  certified  to  this  court  as  a  part  of  the  record."^  For  forms, 
see  post,  No.  275. 

§  371.  Rule  in  reference  to  the  record  to  be  strictly  observed. — 
The  transcript  of  the  record  must  be  prepared  strictly  in  conformity 
■with  the  rule  prepared  by  the  Supreme  Court.  Only  such  state- 
ment of  facts  found  should  be  sent  up  as  is  necessary  to  enable  the 
court  to  determine  upon  the  correctness  of  the  conclusions  of  law 
decided  by  the  court  below,  based  upon  the  facts  found. ^  If  the 
statement  of  facts  found  is  not  sufficient,  the  Supreme  Court  will 
not  dismiss  the  case,  but  remand  it  to  the  Court  of  Claims  for  a 
proper  finding.* 

§372.  Petition  for  the  allowance  of  an  appeal. — The  second  rule 
in  reference  to  the  Court  of  Claims  provided  for  appeals  in  cases  of 
judgments  or  decrees  rendered  before  the  adoption  of  it,  to  wit : 
the  December  Term,  1865,  in  which  cases  it  was  necessary  for  a 
party  desiring  to  appeal  to  make  application  by  petition  to  the 
Court  of  Claims  therefor.  This  rule  is  now  probably  obsolete,  as 
there  can  be  no  cases  to  which  it  would  be  applicable.^ 

§  373.  Order  of  allowance;  time  limited. — Appeals  from  the 
Court  of  Claims  are  not  a  matter  of  right,  and  can  only  be  secured 
by  application  for  an  allowance  of  the  same,  to  the  Court  of  Claims 
or  the   Chief  Justice  thereof  in  vacation.      This  must  be  made 

1  Gen.  Rule  28.  *  United  States  v.  Adams,  6  Wall. 

2  Court  of  Claims  Rule  1.  101. 

*  De  Groot  v.  United  States,  5  Wall.  ^  See  Silverhill  v.  United  States,  5 
419.  Ct.  of  CI.  610. 


292  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

"W'itbin  ninety  days  after  the  judgment  is  rendered;^  but  the  limita- 
tion ceases  from  the  time  the  application  is  made.^  If,  after  an 
appeal  has  been  allowed,  a  motion  is  made  for  a  new  trial,  this  is 
no  ground  for  a  dismissal  of  the  appeal,  unless  the  motion  for  a 
new  trial  prevails,  in  which  case  the  appeal  should  be  dismissed.^ 
And  the  court  may  for  good  cause  shown  revoke  an  order  allowing 
an  appeal.  The  allowance  in  such  a  case  does  not  absolutely  re- 
move the  cause  from  the  jurisdiction  of  the  court  so  long  as  the 
record  has  not  in  fact  been  certified  up  to  the  appellate  court.* 

The  only  mode  for  the  review  of  judgments  of  the  Court  of  Claims 
provided  by  the  statutes  is  on  appeal,  and  the  Supreme  Court, 
therefore,  has  no  power  to  review  them  on  a  writ  of  error.®  For 
forms  in  these  cases,  see  j^ost,  No.  266,  et  seq. 

§  374.  In  case  of  diminution  of  record. — If  either  party  should 
desire  the  court  below  to  supply  supposed  defects  in  its  fact  con- 
clusions deducible  from  the  evidence,  the  proper  practice  would  be 
to  apply  by  motion  for  an  order  on  the  Court  of  Claims  to  make 
return  as  to  the  existence  or  non-existence  of  the  particular  facts 
set  out  in  the  motion  ;  but  a  writ  of  certiorari  would  ordinarily 
issue  on  a  proper  application,  alleging  a  diminution  of  record  or 
writings.^ 

It  is  made  the  duty  of  the  Court  of  Claims,  in  all  cases  where 
either  party  is  entitled  to  an  appeal,  to  make  and  file  their  findings 
of  fact  and  their  conclusions  of  law  therein  in  open  court,  before  or 
at  the  time  they  enter  their  judgment  in  the  case  ;  and  in  all  such 
cases  each  party  at  such  time,  before  the  trial,  as  the  court  shall 
prescribe,  must  submit  to  the  court  a  request  to  find  all  the  facts 
which  the  party  considers  proven  and  deems  material  to  the  due 
presentation  of  the  case  in  the  findings  of  facts.^ 

1  Kev.  Stat,  g  708.  &  Latham's  Appeal,  9   Wall.   145 ; 

2  Ct.  of  CI.  Kule  3.  See  McNutt  v.  United  States  v.  Young,  94  U.  S. 
United  States,  8  Ct.  of  CI.  185.  258. 

■^  United   States  v.  Aj^ers,  9  Wall.  ®  United  States  ii.  Adams,  9  Wall. 

608;    United   States    v.    Crussell,    12  661. 

Wall.  175;  United    States  v.  Young,  '' Ct.  of  CI.  Rules  4  and  5.     A  con- 

94  U.  S.  258.  sideration  of  the  jurisdiction,  practice 

*  Ex  jmi'te  Roberts,  15  Wall.  384.  and  procedure  in  the  Court  of  Claims 

An  appeal  cannot  be  taken  from  a  will  be  found  in  another  place  in  this 

decision  grantincj  a  new  trial  :  Young  volume.     See  post,  ch.  xviii. 
V.  United  States)  95  U.  S.  641. 


CHAPTER   XV. 

AVRITS    OF    PROHIBITION. 

§  375.  Authority  of  the  court  to  issue. — The  power  of  the  Su- 
preme Court  to  issue  writs  of  prohibition  and  writs  of  mandamus 
is  expressly  conferred  by  a  provision  of  the  Revised  Statutes, 
which  is  as  follows:  "The  Supreme  Court  shall  have  powder  to  issue 
writs  of  prohibition  to  the  district  courts,  when  proceeding  as  courts 
of  admiralty  and  maritime  jurisdiction  ;  and  writs  of  mandamus,  in 
cases  warranted  by  the  principles  and  usages  of  the  law,  to  any 
courts  appointed  under  the  authority  of  the  United  States,  or  to 
persons  holding  oflSce  under  the  authority  of  the  United  States, 
where  a  state,  or  ambassador  or  other  public  minister,  or  consul  or 
vice-consul,  is  a  party."  ^  The  writ  of  prohibition  is  an  ancient 
common  law  writ,  and  commands  the  person  or  tribunal  to  whom 
it  is  directed  not  to  do  some  act  which  the  court  is  advised,  at  the 
suggestion  of  the  relator,  is  about  to  be  done  contrary  to  law.^ 
The  English  practice  and  precedents  are  generally  followed  in  this 
country  on  applications  for  this  writ.  The  ground  therefor  is  that 
the  district  court,  proceeding  as  a  court  of  admiralty  and  maritime 
jurisdiction,  has  no  cognizance  of  the  cause,  and  that  the  proper 
jurisdiction  thereof  belongs  to  some  other  court.  The  general  Eng- 
lish practice  prescribed  by  statute  provided  for  an  application  for 
the  writ  by  motion  supported  by  affidavits ;  but  if  the  question  was 
complicated,  doubtful  and  uncertain,  the  party  applying  therefor 
was  required  to  make  a  declaration  in  prohibition,  and  to  set  forth  a 
concise  statement  of  the  proceedings  in  respect  to  which  he  prayed 
for  the  writ  to  issue.^  The  practice  in  this  court  is  to  file  a  motion 
supported  by  a  petition  duly  verified,  setting  forth  facts  upon  which 
the  petitioner  relies  for  the  issuance  of  the  writ.*     The  jurisdiction 

^  Rev.  Stat.  |  688.  land,    see    Cases  in    Prohibition,    14 

^  If  the  act  is  already  done  the  writ  Petei-sdorf    Ab.,   word    Prohibitioa  ; 

cannot  undo  it.     The  only  effect  of  Pleadings  and  Forms,  6  Wentworth's 

the  writ  is  to  suspend  and  prevent  PL  242 ;  Crouch   v,  Collins,  1  Saund. 

further  action :  United  States  v.  Hoff-  136;  2  Chit.  Gen.  Pr.  355  ;  2  Sell's 

man,  4  Wall.  158.  Pr.  425. 

3  1  Wm.  IV.,  ch.  21 ;   2  Bl.  Com.  *  Ex  parte  Gordon,   1^  Black  503  5 

113.     For  general   practice  in  Eng-  i7a;  j?arie  Euston,  Uo  U.  S.  68. 


294  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

of  this  court  in  such  cases  is  in  effect  appellate,  as  it  is  required 
to  review  the  proposed  action  of  the  district  court  and  determine 
whether  such  action  is  legal,  and  if  not,  to  prohibit  the  same.  The 
statute  limits  the  issuance  of  the  writ  "  to  the  district  courts  when 
proceeding  as  courts  of  admiralty  and  maritime  jurisdiction."  * 

Under  this  provision,  application  was  made,  in  1795,  for  a  writ  of 
prohibition  to  the  "judge  of  the  district  court  of  the  United  States 
in  and  for  the  district  of  Pennsylvania,  to  be  directed  to  prohibit 
him  from  holding  "  further  jurisdiction  of  a  case  pending  before 
him. 

The  proceedings  in  the  suit,  sought  to  be  prohibited,  were  by 
libel  and  process  of  arrest  against  the  commander  of  an  armed  ves- 
sel of  the  French  Republic,  for  an  alleged  illegal  capture  on  the  high 
seas  of  a  neutral  merchant  vessel,  the  property  of  a  citizen  of  the 
state  of  Pennsylvania,  and  carried  into  Port  de  Paix,  within  the 
French  Republic,  the  commander  of  the  armed  vessel  being  then  in 
the  port  of  Philadelphia.  The  suggestion  was  filed  by  the  com- 
mander, in  the  Supreme  Court,  in  which  it  was  claimed  that  by  the 
laws  of  nations  and  by  treaties  subsisting  between  the  United  States 
and  the  French  Republic,  trials  of  captures  on  the  high  seas  of  ves- 
sels brought  within  the  dominion  and  jurisdiction  of  the  Republic, 
and  all  questions  incidental  thereto,  belonged  exclusively  to  the 
judiciary  of  the  Republic,  and  to  no  other  tribunals ;  that  by  the 
law  of  nations  and  the  aforesaid  treaties,  the  vessels  of  war  of  the 
Republic  and  the  officers  commanding  them  cannot  be  sued  or  ar- 
rested in  ports  of  the  United  States  for  captures  on  the  high  seas, 
and  taken  for  legal  adjudication  into  the  ports  of  the  Republic ;  and 
that  the  district  court  of  the  United  States  ought  not  to  maintain 
jurisdiction  or  hold  pleas  of  such  captures. 

The  motion  for  the  prohibition  was  opposed  on  the  ground  that 
the  district  court  had  jurisdiction ;  that  if  this  point  were  doubtful 
the  prohibition  ought  not  to  issue  until  after  sentence ;  and  that  on 
a  plea  to  jurisdiction  the  injured  party  had  an  adequate  remedy  by 
appeal.     But  the  court  sustained  the  motion.^ 

This  case  settled  the  construction  of  the  statute  as  to  the  func- 
tions of  the  writ,  and  established  substantially  the  common  law 
practice  as  to  its  appropriate  use  in  restraining  the  illegal  cogni- 

1  Sec.  13  of  the  Judiciary  Act  of  'United  States  v.  Peters,  3  Dall. 
1789;  Rev.  Stat.  §  6S8.         "  121. 


PROHIBITION.  295 

zaiice  of  proceedings  where  there  is  a  want  of  jurisdiction,  even 
when  there  is  another  adequate  remedy.^ 

§  376.  The  -vyrit  •will  issue  only  in  the  cases  expressly  provided  for 
by  statute. — Under  the  14th  section  of  the  Judiciary  Act  (now 
section  716  of  the  Revised  Statutes),  it  was  provided  that  the  Su- 
preme, circuit  and  district  courts  shall  "have  power  to  issue  writs 
not  specifically  provided  for  by  statute,  which  may  be  necessary  for 
the  exercise  of  their  respective  jurisdictions,  and  agreeable  to  the 
usages  and  principles  of  law." 

In  1845  a  motion  was  made  to  the  Supreme  Court  for  a  writ  of 
prohibition,  to  be  issued  to  the  district  court  of  the  United  States 
for  the  district  of  Louisiana,  sitting  in  bankruptcy.  It  was  claimed 
in  support  of  the  motion  that  it  was  a  proper  case  for  the  issuance 
of  the  writ;  for  although  there  was  no  special  provision  made  by  stat- 
ute therefor  in  cases  at  law  or  in  equity,  it  was  necessary  for  the 
appropriate  exercise  of  the  appellate  powers  of  the  Supreme  Court 
under  the  provision  last  referred  to.  But  Judge  Story,  in  an 
elaborate  opinion,  disposed  of  the  case  by  holding  that  the  district 
court  had  jurisdiction,  and  thereby  made  it  unnecessary  to  decide 
the  question  of  the  power  of  this  court  to  issue  the  writ.  On, this 
question  he  observed:  "As  the  district  court  has  not  exceeded  its 
jurisdiction,  it  is  not  absolutely  necessary  to  be  decided.  But  it 
may  be  proper  to  say,  as  the  point  has  been  fully  argued,  that  we  pos- 
sess no  revising  power  over  the  decrees  of  the  district  court  sitting 
in  bankruptcy;  .  .  .  that  we  know  of  no  case  where  this  court  is 
authorized  to  issue  a  writ  of  prohibition  to  the  district  court  except 
in  the  cases  expressly  provided  for,  .  .  .  that  is  to  say,  where  the 
district  courts  are  proceeding  as  courts  of  admiralty  and  maritime 
jurisdiction."  ^ 

The  same  doctrine  was  recognized  in  a  subsequent  case  where 

^  In  the  case  of  The  Exchange  v.  tection    of  the   country  whose   ports 

McFadden,  7  Or.  116,  it  was  held  that  they  thus  enter.     And  in  the  case  of 

a  public  vessel  of  war  belonging;  to  a  The   Alecta,    9  Cr.  264,  it   was   laid 

foreign  sovereign  at  peace  with  the  down  as  a  general  rule  as  to  prize 

United  States,  when  visiting  our  ports  jurisdiction,  that  the  trial  of  captures 

in  a  friendly  manner,  is  exempt  from  made  on  the  high  seas,  ^wre  belli,  by 

the  jurisdiction   of  our   courts;   that  a  duly  commissioned  vessel  of   war. 

unless  there  is  some  prohibition,  the  whether  from  an  enemy  or  a  neutral, 

ports  of  a  friendly  nation  are  consid-  belongs  exclusively  to  that  nation  tc* 

ered  as  open  to  the  public  ships  of  all  which  the  captor  belongs, 

nations  with  whom   it  is  at  peace ;  ^  In  re  Christy,  3  How.  292. 
Snd  that  they  are  entitled  to  the  pro- 


296  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURB. 

application  was  made  for  a  writ  of  prohibition  to  the  judges  of  the 
circuit  court  of  the  United  States  for  the  southern  district  of  New 
York,  and  its  officers  and  the  marshal,  to  restrain  them  from  further 
proceeding  in  a  case  where  the  applicant  had  been  found  guilty  of 
piracy  and  sentenced  to  death.  But  the  court  refused  the  motion 
for  the  writ,  holding  that  it  could  not  issue  in  cases  where  there  is 
no  appellate  power  or  authority  of  law  so  to  do ;  and  that  it  would 
not  lie  to  a  circuit  court  in  a  criminal  case.^ 

In  Ex  parte  Graham^  the  application  was  for  a  writ  to  restrain  a 
district  judge  from  proceeding  under  the  act  entitled  "An  act  to 
suppress  insurrection  and  punish  treason  and  rebellion  ;  to  seize 
and  confiscate  the  property  of  rebels,"  etc.  The  act  provided  that 
the  proceedings  should  be  in  rem,  "  and  conform  as  near  as  may  be 
to  the  proceedings  in  admiralty  or  revenue  cases."  But  the  court 
held  that,  as  it  had  power  to  issue  the  writ  only  in  cases  of  admi- 
ralty and  maritime  jurisdiction,  and  the  proceedings  sought  to  be 
prohibited  were  not  of  these  cases,  it  could  not  issue  the  writ.^  It 
was  further  suggested  by  the  court  that  if  there  should  be  error  in 
the  proceedings  of  the  district  court,  there  would  be  a  remedy  for 
the  petitioners  by  a  writ  of  error  from  the  circuit  to  the  district 
court,  and  finally  from  that  court  to  the  Supreme  Court. 

Power  is  vested  in  the  Supreme  Court  to  issue  writs  of  prohibi- 
tion to  the  district  courts  only  where  said  courts  are  assuming  to 
take  cognizance  of  cases  of  admiralty  and  maritime  jurisdiction 
when  they  have  no  jurisdiction  ;*  and  they  can  exercise  this  power 
in  no  other  case.  If  the  act  is  done  the  writ  cannot  undo  it.  The 
only  effect  of  the  writ  is  to  suspend  action.^ 

§  377.  Where  it  will  not  issue. — The  writ  of  prohibition  will  not 
issue  to  stop  the  action  of  the  district  court  or  revise  its  decrees  in 
bankruptcy,  nor  in  any  case  to  that  court  except  the  one  mentioned 
in  section  688  of  the  Revised  Statutes ;  as  the  particular  provision 
there  made  for  its  issuance  to  the  district  court  in  certain  cases 
excludes  all  authority  to  issue  it  under  the  general  provisions  of 
section  716  of  the  Revised  Statutes.^     And  whether  the  district 

^  Ex   parte    Gordon,    1   Black  5()3  *  Ex  parte  Easton,    95   U.   S.   68 ; 

(1861).  See  also  Ex  parteW  axumnih^  United  States  v.  Peters,  3  Dall.  121. 

17  Wall.  64.  5  United  States  v.  Hoffman,  4  Wall. 

2  10  Wall.  541.  158  ;  In  re  Christy,  3  How.  292. 

^  The  Union  Insurance  Co.  y.  United  ^  Ex  parte  Gordon,  1  Black  503; 

States,  6  Wall.  759  ;  United  States  t'.  Li  re  Christy,  3  How.  292 ;  Ex  part^ 

Arinstronji's  Foundry,   Id.  7GG  ;  The  Warmouth,  17  Wall.  64. 
Sarah,  b  Wlieaton  391, 


PROHIBITION.  297 

court  has  transcended  its  jurisdiction  depends  upon  the  facts  stated 
in  the  record  upon  which  the  district  court  is  called  upon  to  act, 
and  upon  which  only  it  can  act,  and  this  court  will  not,  upon  an 
application  for  the  writ,  look  into  matters  dehors  the  record.^ 

§  378.  Application  for  the  writ. — We  have  briefly  considered  the 
oflSce  and  functions  of  the  writ  of  prohibition.  The  formal  appli- 
cation for  the  writ  is  called  a  suggestion,  and  it  should  be  entitled 
in  the  court  from  which  it  proceeds,  but  not  in  any  case  or  matter, 
as  there  is  no  cause  in  court.^  The  suggestion,  as  we  have  before 
observed,  may  be  in  the  form  of  a  petition  or  motion,  supported  by 
affidavits. 

For  form  in  such  cases,  see  post,  No.  254. 

For  form  of  writ,  see  post,  No.  255. 

1  Ex  parte  Easton,  95  U.  S.  68.  ^  Lj^y^j  q^  p^oh.  56. 


CHAPTER  XVI. 

WRITS    OF    MANDAMUS. 

§  879.  A  common  law  prerogative  writ. — The  writ  of  mandamus 
is  an  ancient  common  law  prerogative  writ,  which  issued  from  the 
Court  of  King's  Bench  and  was  directed  to  some  person,  corpora- 
tion or  inferior  court,  commanding  some  particular  act  or  acts  to  be 
done  which  it  was  their  clear  duty  to  do  or  which  had  been  adjudged 
should  be  done  or  performed  by  them.  It  was  instituted  to  prevent 
a  failure  of  justice,  as  where  the  law  enjoined  a  duty  upon  a  judge 
or  court  or  corporation  which  they  refused  to  perform,  and  in  the 
performance  of  which  the  party  claiming  the  writ  Avas  interested, 
and  by  the  non-performance  of  which  he  would  be  injured,  and  the 
law  afforded  no  other  specific  or  adequate  remedy.  These  general 
doctrines  and  principles  are  applicable  to  the  practice  in  the  federal 
courts.  If  the  act  required  is  impossible  of  performance  or  the 
right  to  insist  upon  its  performance  is  doubtful,  or  if  there  is  a 
speedy,  adequate  and  complete  remedy  by  other  proceedings  at 
law,  the  writ  will  be  refused.^ 

§  380.  Provisions  of  the  Revised  Statutes  relating  to  w^rits  of 
mandamus. — The  Revised  Statutes  provide  that  the  Supreme  Court 
shall  have  power  to  issue  "  writs  of  mandamus,  in  cases  warranted 
by  the  principles  and  usages  of  law,  to  any  courts  appointed  under 
the  authority  of  the  United  States,  or  to  persons  holding  office 
under  the  authority  of  the  United  States,  where  a  state,  or  an  am- 
bassador or  other  public  minister,  or  a  consul  or  vice-consul,  is  a 
party."  ^  This  provision  limits  the  authority  of  the  Supreme  Court 
to  certain  cases.  But  another  section  of  the  statutes  provides  as 
follows :  "  The  Supreme  Court,  and  the  circuit  and  district  courts, 
shall  have  power  to  issue  writs  of  scire  facias.  They  shall  also  have 
power  to  issue  all  writs  not  specifically  provided  for  by  statute, 
which  may  be  necessary  for  the  exercise  of  their  respective  juris- 
dictions and  agreeable  to  the  usages  and  principles  of  law."^ 

1  Add.  onTorts  (Wood's  ed.).  1 1505;  ^  Rev.  Stat.  |  688. 

Reg.  V.  Chichester,  etc.,  29  L.  .J.,  Q.  B.  ^  Rgy^  g^at.  |  716.    For  form  of  writ 

23 ;  Ex  parte  Briggs,  28  Id.  272  ;  Com-  of  injunction,  see  post,  No.  258. 
monwealth  v.  Denison,  24  How.  'o'o. 


MANDAMUS.  299 

The  latter  provision  confers  upon  this  court,  and  upon  the  circuit 
and  district  courts,  authority  to  issue  this  writ,  when  it  becomes 
necessary  for  the  proper  exercise  of  their  jurisdiction. 

In  the  former  case  the  writ  will  issue  from  the  Supreme  Court  in 
cases  warranted  by  the  principles  and  usages  of  the  common  law, 
only  against  federal  courts  or  officers,  where  a  state,  or  ambassador 
or  other  public  minister,  or  a  consul  or  vice-consul,  is  a  party. 
Under  the  general  principles  of  the  common  law  the  writ  will  not 
issue  where  there  is  any  other  appropi'iate  remedy.^  Thus,  it  will 
not  be  issued  if  the  party  aggrieved  may  have  a  remedy  by  writ  of 
error  or  appeal,^  as  to  compel  an  inferior  court  to  reverse  its  judg- 
ment,^ or  to* re-examine  a  judgment  or  decree,*  or  to  compel  the  issu- 
ance of  a  mandamus  which  has  been  refused,^  or  to  compel  the 
reversal  of  any  order,  although  it  may  seem  to  bear  harshly  and 
oppressively  upon  a  party, ^  or  to  compel  a  court  to  quash  a  writ  of 
execution,^  or  to  vacate  any  order,^  or  to  compel  a  judge  to  proceed 
according  to  the  rules  of  chancery  practice  in  a  suit  in  equity  even 
if  he  is  proceeding  in  the  case  irregularly,^  or  to  compel  the 
allowance  of  an  amendment."^  Nor  will  the  court,  on  general  prin- 
ciples, issue  a  writ  to  control  the  inferior  court  or  officer  in  the 
exercise  of  a  discretion  where  the  discretion  is  exercised,  as  in  a 
case  of  a  motion  for  a  new  trial,"  or  in  case  of  the  rejection  of  a 
bond  offered  for  approval.^^ 

§  381.  Functions  of  the  writ. — It  is  the  function  and  office  of  the 
writ  to  compel  the  performance  of  duties  that  are  unquestionably 
right  and  proper  to  be  performed,  and  not  to  control  the  judgment 
of  the  inferior  court  or  officer  in  a  matter  of  discretion,  or  where 
judgment  has  been  exercised  in  a  matter  within  the  jurisdiction  of 
the  court  or  the  proper  scope  of  the  powers  or  functions  of  the  officer.^^ 

1  Crawford   v.   Addison,    22   How.  ^  Ex  parte  Flippin,  94  U.  S.  348. 

174.  8  Ex  parte  Loring,  94  U.  S.  418. 

-  Ex  parte  Newman,  14  Wall.  152 ;  ^  Ex2)arte  Myra  Clarke  Whitney,  13 

Ex  parte  Schwaub,  98  U.  S.  240  ;  Ex  Pet.  404. 

parte  Loring,  94  U.  S.  418  ;    Ex  parte  '°  Ex  parte  Wm.  Many,  14  How.  24. 

Flippin,  94  U.  S.  348.  ii  Life  and  Fire  Ins.  Co.  v.  Wilson,  S 

^  Ex  parte  Taylor,  14  How.  3  ;    Ex  Pet.  291. 

parte  William  Many,  14  How.  24.  ^'^  Ex  parte   Milwaukee  R.  Co.,  5 

*  Ex  parte  Newman,  14  Wall.  152  ;  Wall.  188. 

Ex  parte   Schwaub,   98    U.    S.    240 ;  ^^  Ex  parte  Cutting,  94  U.  S.  14 

Ex  parte  Railroad  Co.,  103  U.  S.  794.  Ex  parte  David  Taylor,  14  How.  3 

'  Ex  parte  DeGroot,  7  Wall.  497.  Ex  parte  Wm.  Many,   14  How.  24 

®  i7x^:)a?-^e  Myra  Clarke  Whitney,  13  Ex  parte  Joseph   Bradley,   7   Wall 

Pet.  404.                                           '  364 ;  Ex  parte  Butting,  94  U.  S.  14 


300  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

§  382.  Where  there  is  a  discretion. — Where  there  is  an  official 
judgment  or  discretion  to  be  exercised,  a  writ  of  mandamus  may 
issue  to  compel  action  in  these  respects,  but  it  will  not  be  allowed 
either  to  commend  a  particular  judgment  or  to  interfere  with  the 
exercise  of  the  discretion.^ 

The  refusal  to  exercise  a  discretion  may  constitute  a  proper  case 
for  the  issuance  pf  the  writ ;  but  where  the  mode  of  action  is  also 
in  the  discretion  of  the  party  against  whom  it  is  sought,  it  will  not 
issue  so  as  to  interfere  with  such  discretion.^ 

§  383.  Instances  where  it  has  been  issued. — It  has  been  held 
proper  to  issue  the  writ  from  a  circuit  court,  on  the  ground  of  ne- 
cessity for  the  exercise  of  its  jurisdiction,  to  compel  a  municipal 
corporation  to  levy  a  tax  to  pay  a  judgment  rendered  by  such 
court  against  the  corporation ;  ^  to  restore  an  officer  to  an  office 
from  which  he  has  been  unlawfully  removed  ;  *  to  compel  an  incum- 
bent of  an  office  to  deliver  up  papers,  property  and  the  insignia  of 
the  office  to  his  successor;^  to  compel  a  city  council  to  pay  certain 
necessary  expenses  authorized  by  the  legislature ;  ^  to  compel  trus- 
tees to  admit  children  to  schools,  where  they  are  entitled  to  the 
right  of  attendance ; ''  to  compel  a  board  of  canvassers  to  make  a 

Arlincrton  v.  Van  Huton,  44  Ala.  284  ;  106  ;  McMullin  v.  State,  26  Id.  613  ; 

Reading  v.  Cumminc^s,  11  Pa.  St.  196  ;  State  v.  Warmouth,  23  La.  Ann.  76  ; 

People   V.  Thompson,  25   Barb.    75;  East  Boston  Ferry  Co.  w.  Boston,  101 

Fitch   V.    McDiai'mid,    26   Ark.  482 ;  Mass.  488 ;    Commissioners  v.  Phila- 

Stub  V.  McCrillus,  4  Kans.  250  ;  Ex  delphia,  3  Brewst.  (Pa.)  596;  Ex  parte 

parte  Conway,  6  Tex.  457  ;  People  v.  Smith,  44  Ala.  654;  Appling  v.  Bailey, 

Board   of    Police,    26    N.    Y.    316  ;  44  Id.  333  ;  2  Add.  on  Torts  (Wood's 

School  Ins.  V.  People,  20  111.  530.  ed.),  719,  et  seq. ;  Life  and  Fire  Ins. 

^  United  States  v.  Lawrence,  3  Dill.  Co.  v.  Adams,  9   Pet.  573  ;  Ex  parte 

42  ;  Railroad  Co.  v.  Wiswall,  23  Wall.  Poultnev,  1 2  Pet.  472  ;  Ex  parte  Tay- 

507  ;  Ex  parte  Bradstreet,  4  Pet,  102 ;  lor,  14  How.  3. 

s.  c,  7  Id.  634  ;  s.  c,  8  Id.  588  ;  Insur-  ^  United  States  v.  Keokuk,  6  Wall, 

ance  Co.  v.  Comstock,  16  Wall.  270;  516;  Riggs  v.  Johnston  Co.,  6  Wall. 

Livingstone  v.  Dorgenois,  7  Cr.  577  ;  166;  Wakeley  v.  Muscatine,  Id.  481. 

Ex  parte  Crane,  5  Pet.  190 ;  Appling  See  also  Lower  v.  U.  S.,  91  U.  S.  536  ; 

V.  Bailey,  44  Ala.  333  ;  Matter  of  Na-  United  States  v.  New  Orleans,  98  U. 

bor,  7  Ala.  459;  Dixon  v.  Field,  10  S.  381. 

Ark.  243  ;    Manor  v.  McCall,  5  Ga.  *  Drew  v.  Judges,  3  II.  &  M.  (Va.) 

522  ;  Warden  v.  Town  Council,  9  R.  1  ;  People  v.  Board  of  Police,  35  Barb. 

1.128;  Mayor  w.  Rainwater,  47  Miss.  531;    State    v.   Common   Council,    9 

547 ;  People  v.  Judge,  etc.,  24  Mich.  Wis.  254. 

408 ;    Ex  parte  ]\^ewman,    14   Wall.  ^  Walter  v.  Belding,  24  Yt.  658  ; 

152;    United    States  v.   Seaman,    17  Church  v.  Slack,  7  Cush.  226;  Sud- 

How.  225 ;  United  States  v.  Commis-  bury  v.  Stearns,  21  Pick.  148. 

sioners,  5  Wall.    553  ;    Secretary  v.  ®  Commissioners  v.  Philadelphia,  3 

McGarrahan,  9  Wall.  298.  Brewst.  (Pa.)  596. 

^  2  Id. ;  McDiarmid  v.  Fitch,  27  Ark.  ^  State  v.  Duffy,  7  Nev.  342. 


MANDAMUS.  301 

complete  canvass  of  all  the  returns  received  by  them  ;  ^  to  compel 
a  judge  of  an  inferior  court  to  sign  a  bill  of  exceptions  in  a  case 
tried  before  him,^  or  to  make  up  a  record  and  give  judgment 
thereon,  so  that  a  writ  of  error  maybe  brought;^  to  compel  a 
judge  to  enter  a  judgment  rendered  by  his  predecessors ;  *  to  com- 
pel a  judge  to  enter  a  judgment  on  the  report  of  a  referee ;  ^  to 
compel  a  clerk  to  issue  an  execution  on  a  judgment ;  ^  and  gener- 
ally to  compel  the  performance  of  all  ministerial  duties  on  the  part 
of  officers,  corporations  and  inferior  courts,  where  there  is  no 
other  adequate  legal  remedy  by  which  the  specific  duty  can  be  en- 
forced, and  the  relator  has  a  clear  legal  right  to  the  performance 
of  it,  and  the  performance  is  refused.''  Under  the  power  conferred 
by  the  statute,  the  Supreme  Court  may  issue  this  writ  to  the  Court 
of  Claims  to  compel  it  to  hear  and  determine  a  motion  for  a  new 
trial ;  ^  and  to  a  district  court  commanding  it  to  execute  its  de- 
crees, notwithstanding  the  legislature  of  the  state  has  attempted  to 
annul  them  on  the  ground  that  the  court  had  no  jurisdiction.^ 

§  384.  When  a  mandamus  is  necessary  for  the  exercise  of  juris- 
diction.— Under  section  716  of  the  Revised  Statutes,  the  writ  can 
only  issue  from  the  Supreme  Court  and  the  circuit  and  district 
courts  in  cases  where  it  "  may  be  necessary  for  the  exercise  of  their 
respective  jurisdictions  agreeable  to  the  usages  and  principles  of  the 
law."  Under  this  provision  the  circuit  court  cannot  grant  it  unless 
it  is  necessary  for  the  exercise  of  its  jurisdiction,  although  the  par- 
ties are  citizens  of  different  states. '"^  But  the  circuit  court  has  a 
right,  as  we  have  noticed,  to  issue  the  writ  against  a  municipal  cor- 
poration to  compel  the  levy  of  a  tax  to  pay  a  judgment  rendered 
against  the  corporation  in  said  court,"  as  this  is  necessary  for  the 

»  Florida  v.  Gibbs,  13  Fla.  55.  Mavor,  35  N.  J.  396  ;  People  v.  Eas- 

^  Porter  v.  Harris,    4    Coll.    (Va.)  ton'  13  Abb.  Pr.  (N.  S.)  159;  People 

485;  State  v.   Hull,  3  Cold.    (Tenn.)  v.   Supervisors,   12  Barb.   217;  Rail- 

255  ;  People  v.  Pearsons,  3   111.  189  ;  road  Co.  v.  Clinton  Co.,  1  Ohio  St.  77  ; 

Ux  parte  Crane,  5  Pet.  190.  People  v.  Thompson,  64  N.  Y.  600  ; 

^  Ex  parte  Bradstreet,  7  Pet.  634.  People  v.   Thompson,  25    Barb.  73  ; 

*  Life  Insurance  Co.  v.  Wilson,  8  People  w.  Head,  25  111.  325;  Peoples. 

Pet.  291.  Hilliard,  29  Id.  418  ;  High's  Ex.  Leg. 

5  Russell  V.  Elliott,  2  Cal.  245.  Hem.  Tit.  Mand. 

«  People  V.  Loucks,  28  Cal.  68.  »  Ex  parte  United  States,  16  Wall. 

'  Nelson  v.  Justices,  1  Cold,  (Tenn.)  699 


207 ;  People  v.  Green,  64  N.  Y.  499 
People  V.  Supervisors,  Id.  600 
Strong,  Petitioner,  20  Pick.  484 
Traver  v.  Commissioners,  17  Ala.  527 


9  United  States  v.  Peters,  5  Cr,  115. 

1"  Wheeling  V.  Mayor,  1  Hughes  90; 
Bath  Court  v.  Amy,  13  Wall.  244; 
Graham  v.  Norton,  1  Wall.  427. 


State    Nicholson    Pavement    Co.    v.        '^  Riggsv.  Johnston  Co.,  6  Wall.  166; 


302  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

proper  exercise  of  its  jurisdiction.  But  a  mandamus  from  the  Su- 
preme Court  to  a  district  court  is  not  necessary  for  the  exercise  of 
the  appellate  jurisdiction  of  the  court,  except  in  prize  cases,  as  the 
proper  appellate  court  would  be  the  circuit  court.^ 

§  385.  Practice  and  proceedings. — The  writ  is  either  alternative 
or  peremptory ;  and  the  first  writ  issued  is  usually  an  alternative 
one,  requiring  the  party  against  whom  it  is  issued  to  do  the  act  or 
show  cause  why  he  does  not,  at  some  specified  time  and  place.  If 
the  defendant  appears  and  shows  sufficient  excuse,  then  the  writ  is 
dismissed ;  but  if  otherwise,  or  he  makes  default,  then  the  peremp- 
tory writ  issues  commanding  the  act  to  be  done. 

But  this  does  not  appear  to  be  the  uniform  practice  in  the  Su- 
preme or  other  federal  courts.  The  relator  sometimes  proceeds  by 
motion  based  upon  an  affidavit,  for  -an  order  to  show  cause  why  the 
writ  should  not  issue.  The  hearing  on  the  motion  is  sometimes,  if 
not  generally,  ex  parte,  and  without  notice  to  the  party  against 
whom  it  is  sought.  The  order,  if  allowed,  is  served  on  the  de- 
fendant, and  requires  him  to  appear  and  show  cause  against  the 
issuing  of  the  writ  at  a  certain  time  and  place,  when  he  can  have  an 
opportunity  to  be  heard  and  to  controvert  the  statements  in  the 
relator's  affidavit  by  counter  affidavits. 

Another  mode  of  proceeding  is  by  petition  or  complaint  under 
oath,  in  which  the  relator  sets  forth  the  facts  which  entitle  him  to 
the  writ,  to  which  the  attention  of  the  court  is  called  by  motion, 
after  due  notice  to  the  defendant  of  the  time  and  place  it  will  be 
heard,  at  which  time  he  has  an  opportunity  to  defend,  and  may 
demur,  move  to  quash,  answer,  or  reply  to  the  petition  or  complaint, 
as  he  may  deem  advisable. 

§  386.  -When  the  writ  will  not  issue. — The  writ  of  mandamus  is 
not  a  proper  process  for  the  correction  of  erroneous  judgments  or 
decrees  of  the  inferior  court ;-  nor  will  it  issue  to  compel  such  court 
to  open  up  a  judgment,  after  a  refusal  so  to  do  in  the  exercise  of  a 
judicial  discretion  ;^  nor  to  restore  a  person  to  the  office  of  attorney 
or  counsellor  of  the  court,  after  dismissal  therefrom  by  a  court 

United  States  v.  Johnson,  7  Cent.  L.  ^  Ex  parte  Hoyt,  13  Pet.  279 ;  Ex 

J.  130;  United  States  ??.  New  Orleans,  parte  Whitney,  13  Pet.  404  ;  Ex  parte 

98  U.  S.  381;  Supervisors  v.  United  Flippin,  94  U.   S,  348;  Ex  parte  ho- 

States,  4  Wall.  435  ;  Commissioners  v.  ring,  Id.  418  ;  Ex  parte  Raih'oad,  101 

Aspinwall,  24  Howard  376  ;  Weber  v.  U.  S.  711  ;  Railroad  Co.  v.  Ailing,  99 

Lee  County,  6  Wall.  210.  Id.  463  ;  Ex  parte  French,  100  Id.  5. 

1  Ex  parte  Jesse  Hoyt,  13  Pet.  279.  ^  Ex  parte  Many,  14  How.  24. 


MANDAMUS.  303 

having  jurisdiction  of  the  matter;^  nor  to  compel  a  court  to  set 
aside  an  order,  duly  entered,  for  the  vacation  of  a  judgment;-  nor 
to  compel  a  circuit  court  to  proceed  to  execute  a  judgment  from 
which  an  appeal  has  been  duly  taken  to  the  Supreme  Court  ;^  nor 
to  command  a  governor  of  a  state  to  deliver  up  a  fugitive  from 
justice,  under  a  requisition  from  the  governor  of  another  state;* 
nor  can  it  perform  the  office  of  an  appeal  or  writ  of  error.^ 

§  387.  The  general  principles  and  practice  applicable  to  all  courts. 
— The  principles  and  practice  generally  applicable  in  case  of  man- 
damus are  applicable  to  all  courts,  whether  federal  or  state.  The 
statute,  as  we  have  seen,  gives  the  circuit  and  district  courts  power 
to  issue  the  writ  whenever  necessary  for  the  exercise  of  their  re- 
spective jurisdictions,  agreeable  to  the  usages  and  principles  of  the 
common  law.  And  whenever  they  have  power  for  this  purpose, 
the  general  principles  and  practice  in  such  cases  would  be  appli- 
cable ;  and  the  authorities  we  have  cited,  whether  of  the  federal  or 
state  courts,  will  be  equally  applicable  to  any  federal  court,  so  far 
as  they  relate  to  the  general  doctrines  and  practice. 

For  form  of  writ,  see  post,  No.  257. 

^  Ex  parte   Secombe,    19  How.   9.  ^  United  States  v.  Addison,  22  How. 

But  this  is  otherwise  where  the  court  174. 

had  no  jurisdiction:  Ex  parte  Brad-  *  Governor  of  Kentucky  v.  Gover- 

ley,  7  Wall.  364;  £"0;  ^m-^e  Robinson,  nor  of  Ohio,  24  How.  66. 

19  Wall.   505  ;  Ex  parte  Garland,  4  »  Ex  parte  Schwaub,  98  U.  S.  240 ; 

Wall.  378.  Ex  parte  Railway  Co.,  103  U.  S.  794. 

'^  Ex  parte  Ransom,  20  How.  581. 


CHAPTER   XVII. 

WRITS    OF    HABEAS    CORPUS. 

§  388.  When  federal  courts  may  issue. — The  Supreme  Court  and 
the  circuit  and  district  courts,  and  the  several  justices  and  judges 
thereof  within  their  respective  jurisdictions,  have  power  to  grant 
writs  of  habeas  corpus  for  the  purpose  of  inquiry  into  the  cause  of 
restraint  of  liberty  ; '  but  they  will  not  issue  for  such  a  purpose  where 
the  party  for  whose  benefit  it  is  invoked  is  a  prisoner  in  jail,  unless 
"he  is  in  custody  under  or  by  color  of  the  authority  of  the  United 
States,  or  is  committed  for  trial  before  some  court  thereof;  or  is  in 
custody  for  an  act  done  or  omitted  in  pursuance  of  a  law  of  the 
United  States,  or  of  an  order,  process  or  decree  of  a  court  or  judge 
thereof;  or  is  in  custody  in  violation  of  the  Constitution  or  of  a 
law  or  treaty  of  the  United  States;  or,  being  a  subject  or  citizen 
of  a  foreign  state,  and  domiciled  therein,  is  in  custodv  for  an  act 
done  or  omitted  under  an  alleged  right,  title,  authority,  privilege, 
protection  or  exemption  claimed  under  the  commission  or  order 
or  sanction  of  any  foreign  state,  or  under  color  thereof,  the  validity 
and  effect  whereof  depend  upon  the  law  of  nations  ;  or  unless  it  is 
necessary  to  bring  the  prisoner  into  court  to  testify."^ 

The  application  for  the  writ  must  be  made  by  a  complaint  in 
writing,  signed  by  the  person  for  whose  relief  it  is  intended,  and  it 
must  set  forth  the  facts  concerning  the  detention,  in  whose  custody 
he  is  detained,  and  by  virtue  of  what  claim  or  authority  he  is  de- 
tained, if  known,  and  these  facts  must  be  verified  by  the  oath  of 
the  person  making  the  application.^ 

It  will  be  noticed  that  the  complaint  must  be  signed  by  the  party 
restrained  of  his  liberty,  who  must  verify  it.  This  is  imperative ; 
and  an  application  for  the  writ  made  by  his  friends,  without  the 
authority  of  the  party  for  whom  it  is  made,  will  be  denied. 

In  1844  Thomas  W.  Dorr  was  tried  and  convicted,  in  the  su- 
preme court  of  Rhode  Island,  for  treason  against  that  state,  and 
sentenced  to  the  state's  prison  for  life.     On  motion  for  a  writ  of 

1  Rev.  Stat.  11  751,  752.  '  Rev.  Stat.  |  754. 

2  Rev.  Stat,  g  753. 


HABEAS    CORPUS.  805 

habeas  corpus,  in  the  Supreme  Court  of  the  United  States,  aflS- 
davits  were  read  to  show  that  personal  access  to  Dorr  was  refused, 
in  consequence  of  which  his  authority  could  not  be  obtained  for  an 
application  for  the  writ ;  and  it  was  urged  that  there  was  no  other 
mode  of  ascertaining  whether  or  not  it  was  Dorr's  wish  that  the 
case  should  be  brought  before  this  court.  But  the  motion  was 
denied,  because  no  court  of  the  United  States  or  judge  thereof  can 
issue  a  habeas  corpus  to  bring  up  a  prisoner  who  is  in  custody 
under  a  sentence  or  execution  of  a  state  court,  for  any  other  pur- 
pose than  to  be  used  as  a  witness ;  and  because  it  did  not  appear 
that  the  application  was  made  by  authority  of  Dorr  or  at  his  re- 
quest.^ The  authority  of  a  commissioner  to  issue  a  writ  o*f  habeas 
corpus,  to  take  from  jail  a  person  committed  by  authority  of  the 
United  States,  and  to  bring  him  before  him  for  the  purpose  of  giv- 
ing his  deposition,  to  be  used  in  a  district  court,  has  been  denied;^ 
and  even  the  power  of  a  judge  or  a  justice  of  a  United  States 
to  issue  the  writ  in  vacation,  for  the  purpose  of  bringing  the  wit- 
ness into  court  at  an  approaching  term,  has  been  questioned.^ 

For  form  of  application,  writ  and  return,  see  post,  Nos.  262, 
263,  264. 

§  389.  Provisions  of  the  statute  ;  habeas  corpus  and  certiorari. — 
The  provisions  of  the  Revised  Statutes  above  cited  are  a  substan- 
tial re-enactment  of  the  previous  statutory  provisions  regulating  the 
procedure  in  cases  of  habeas  corpus,  and  they  afford  a  plain  guide 
in  those  cases  to  the  proper  practice  where  the  original  jurisdiction 
of  the  federal  courts  is  invoked.  The  case  of  Ex  parte  Lange* 
will  illustrate  the  practice  in  such  cases,  as  well  as  the  general  prin- 
ciples of  the  law  relating  to  this  subject.  The  petitioner  had  been 
indicted,  tried  and  convicted  in  the  circuit  court  of  the  United 
States  for  the  southern  district  of  New  York,  for  stealing,  purloin- 
ing, embezzling  and  appropriating  to  his  own  use  certain  mail-bags 
belonging  to  the  Post-Office  Department.  The  value  of  the  bags,  as 

1  Ex  parte  Dorr,  3  How.  103  (1845).  re  Hoyle,  9  A.  L.  Rec.  65.     But  see 

This  decision  was  made  previous  to  In  re  Ferrens,  3  Ben.  442,  where  it 

the  act  of  February  5,  1867,  which  was  held  that  the  wife  of  the  party  in 

expressly  provided  that  the  applica-  custody  could   make  application  for 

tion  should  be  made  in  writing,  and  his  discharge. 

the  facts  veritied  by  the  oath  of  the  ^  Ex  parte  Barnes,  1  Sprague  133. 

applicant.     This  act,  in  respect  to  the  *  Conkling  PI.  247. 

application,  is  substantially  re-enacted  *  18  Wall.  103. 
bv  I  754  of  the  Revised  Statutes  :   Li 
20 


306  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

found  by  the  jury,  was  less  than  twenty-five  dollars,  the  punishment 
for  which,  as  provided  by  statute,  was  imprisonment  for  not  more 
than  one  year  or  a  fine  of  not  less  than  ten  dollars  nor  more  than 
two  hundred  dollars.  The  presiding  judge  sentenced  the  petitioner 
under  said  conviction  to  one  year's  imprisonment  and  to  pay  a  fine 
of  two  hundred  dollars,  and  he  was  committed  to  jail  on  said  sen- 
tence, but  on  the  day  following  his  commitment  his  fine  was  paid  to 
the  clerk  of  the  court,  who  subsequently  paid  the  same  into  the 
treasury  of  the  United  States.  The  petitioner  was  the  next  day 
thereafter  brought  before  the  same  judge  on  a  writ  of  habeas  cor- 
pus, when  an  order  was  entered  vacating  the  former  judgment,  and 
he  was  again  sentenced  to  one  year's  imprisonment  from  that  date, 
and  the  return  of  the  marshal  showed  that  he  held  the  prisoner 
under  the  latter  sentence. 

All  this  was  done  during  the  term  at  which  he  was  tried  and 
convicted.  The  habeas  corpus  issued  by  the  circuit  judge  was 
returned  into  the  circuit  court  and  two  district  judges  sat  with  him 
on  the  hearing,  and  the  writ  was  discharged  and  the  petitioner 
remanded  to  the  custody  of  the  marshal. 

A  petition  was  afterwards  filed  by  the  prisoner  in  the  Supreme 
Court  of  the  United  States,  praying  for  a  writ  of  habeas  corpus  to 
said  marshal,  on  the  ground  that  he  was  unlawfully  imprisoned 
under  the  order  of  said  circuit  court,  on  consideration  of  which  that 
court  was  of  opinion  that  the  facts  aforesaid,  which  he  alleged 
therein,  fairly  raised  the  .question  whether  the  circuit  court  had  not 
in  the  last  aforesaid  sentence,  under  which  the  prisoner  was  held, 
exceeded  its  powers ;  and  it  directed  a  writ  to  issue,  and  also  a  writ  of 
certiorari  to  bring  up  the  record  in  the  circuit  court  under  which  the 
petitioner  was  restrained  of  his  liberty.  On  a  final  hearing  of  the 
case  the  court  decided  that  although  it  had  no  authority  to  review 
the  judgments  of  inferior  courts  in  criminal  cases  by  the  use  of  the 
writ  of  habeas  corpus  or  otherwise,^  yet  it  had  power  to  look  into 
the  record  of  a  case  to  determine  whether  the  court  had  any  power 
to  render  the  judgment  complained  of,  and  to  ascertain  whether  or 
not  the  court  had  exceeded  its  authority.^ 

^  United  States  v.  Moore,  3  Cr.  170 ;  In  re  Kaine,  14  How.  103  ;  Ex  parte 

Durousseau  v.   United   States,  6   Cr.  Gordon,  1  Black  505. 

307  ;    Ex  parte  Kearney,  7  Wh.  42 ;  ^  United  States  v.  Hamilton,  3  Dall. 

Ex  parte  Watkins,  3  Pet.  193  ;    For-  17  ;  Ex  parte  Burford,  3  Cr.  448  ;  Ex 

syth  V.  United  States,  9  How.  571;  j7arteBollman,4  Cr.75 ;  i^xjpar^eWat- 


HABEAS    CORPUS.  307 

On  the  question  whether  the  court  had  authority  to  pass  the  sec- 
ond sentence  under  which  the  prisoner  was  held,  the  Supreme  Court 
decided  that  the  court  below  could  not  vacate  the  former  judgment 
and  impose  another  punishment  on  the  prisoner  ;  that  the  prisoner 
having  paid  into  court  the  fine  imposed  upon  him,  and  the  money 
having  passed  beyond  the  control  of  the  court,  and  the  prisoner 
having  also  served  several  days  of  his  imprisonment,  all  under  a 
valid  judgment,  the  court  could  not  impose  another  punishment 
on  the  prisoner,  as  that  would  be  to  punish  him  twice  for  the  same 
oifence.  The  court  said  :  "  The  law  authorizes  imprisonment  not  ex- 
ceeding one  year  or  a  fine  not  exceeding  two  hundred  dollars.  The 
court  through  inadvertence  imposed  both  punishments  when  it  could 
rightfully  impose  but  one.  After  the  fine  was  paid  and  passed  into 
the  treasury,  and  the  petitioner  had  sufiered  five  days  of  his  one  year's 
imprisonment,  the  court  changed  its  judgment  by  sentencing  him 
to  one  year's  imprisonment  from  that  time.  If  this  latter  sentence 
is  enforced  it  follows  that  the  prisoner  in  the  end  pays  his  two  hun- 
dred dollars  fine  and  is  imprisoned  one  year  and  five  days,  being  all 
that  the  first  judgment  imposed  on  him  and  five  days  imprisonment 
in  addition."     The  prisoner  was  therefore  discharged. 

§  390.  The  •writ  not  of  course  ;  jurisdiction  must  be  shown. — We 
have  noticed  that  the  issuance  of  the  writ  is  not  a  matter  of  course. 
The  court,  in  the  exercise  of  original  jurisdiction,  may  in  a  proper 
case  issue  the  writ,  but  it  should  first  appear  that  the  court  has 
power  in  the  case  to  act;  and  where  the  cause  of  the  imprisonment 
is  fully  shown  by  the  petition,  the  court  may,  without  issuing  the 
writ,  consider  and  determine  whether,  upon  the  facts  presented  in 
the  petition,  the  prisoner,  if  brought  before  the  court,  would  be 
discharged.^  This  would  be  equivalent  to  a  decision  on  a  demurrer 
to  the  petition. 

§  391.  Allowance,  direction  and  return  of  the  w^rit. — It  is  the 
duty  of  the  court  or  judge  to  whom  the  application  is  made  to 
award  the  writ  forthwith,  unless  it  appears  from  the  petition  itself 

kins,  3  Pet.  193  ;  Ex  parte  Watkins,  McCardle,  7  Wall.  506  ;  ExparteYer- 

7  Pet.  568  ;  Ex  parte  Metzger,  5  How.  ger,  8  Wall.  85. 

176  ;  Ex  parte  Kaine,  14  How.  103  ;  ^  Ex  parte  Milligan,  4  Wall.  2  ;  Ex 

Ex  parte  Wells,  18   How.  307;    Ex  parte  Milburn,  9  Pet.  704;  Ex  parte 

parte  Milligan,  4  Wall.  2;    Ex  parte  Watkins,  3  Pet.    192;  Ex  parte  Km- 

McCardle,    6   Wall.    318  ;    Ex  parte  ney,  3  Hughes  9. 


308  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

that  the  applicant  is  not  entitled  to  it ;  and  it  should  be  directed  to 
the  person  in  whose  custody  the  party  is  detained.^ 

The  party  to  whom  it  is  directed  should  make  due  return  thereof 
within  three  days  thereafter,  unless  he  be  detained  beyond  the 
distance  of  twenty  miles  from  the  place  where  the  return  is 
required.  If  beyond  that  distance,  and  not  more  than  one  hun- 
dred miles,  he  is  allowed  ten  days  to  make  return ;  and  if  beyond 
the  distance  of  one  hundred  miles,  twenty  days ;  and  in  making  it 
he  must  certify  the  true  cause  of  the  detention,  and  bring  the 
body  of  the  person  detained  before  the  judge  who  granted  the 
writ.^ 

When  the  writ  is  returned  it  is  the  duty  of  the  court  or  judge  to 
set  a  time  for  a  hearing  of  the  cause  not  exceeding  five  days  there- 
after, unless  the  party  petitioning  requests  a  longer  time.  The 
facts  set  forth  in  the  return  may  be  denied  by  the  petitioner,  or  he 
may  allege  other  facts  that  may  be  material  to  the  case,  but  they 
must  be  under  oath,  and  the  return  and  all  answers  or  denials  may 
be  amended  by  leave  of  the  court  or  justice,  or  the  judge,  so  as  to 
present  the  material  facts.  The  proceeding  is  in  a  summary  way 
to  determine  the  facts  of  the  case ;  and  after  hearing  the  testimony 
and  the  arguments,  the  court  or  judge  will  dispose  of  the  petitioner 
as  law  and  justice  requires.^ 

If  a  party  is  held  under  a  sentence  of  a  court  that  had  jurisdic- 
tion of  the  case;  the  petitioner  cannot  be  released  though  there  are 
errors  in  the  proceedings.^  And  if  a  party  has  been  committed  for 
an  alleged  contempt  of  a  court  of  competent  jurisdiction,  or  by  a 
court-marshal  that  had  jurisdiction  in  the  case,  and  it  was  within 
the  sphere  of  its  authority,  he  cannot  be  released  on  habeas  corpus ; 
nor  can  an  inquiry  be  made  into  the  sufficiency  of  the  causes  of  the 
commitment.^ 

But  if  a  party  is  imprisoned  by  the  sentence  of  a  court  or  a  judge 
or  a  magistrate,  and  the  sentence  is  void  for  want  of  authority  to 
pronounce  it,  as  where  the  law  under  which  the  prosecution  was 
instituted  was  unconstitutional  and  void;  or  where  there  was  no 
authority  for  the  magistrate,  commissioner  or  other  person  to  cause 

1  Rev.  Stat.  §  755 ;  Ex  parte  Wat-  *  Johnson  v.  U.  S.,  3  McLean  89 ; 

kins,  3  Pet.  193  ;  Ex  parte  Milligan,  Ex  parte  Parks,  93  U.  S.  18  ;  Ex  parte 

4  Wall.  2.  Siebold,  100  U.  S.  371. 

*  Rev.  Stat.  §?  756,  757,  758.  '  Ex  parte  Kearney,  7  Wh.  38  ;  Ex 

•    »  Rev.  Stat.  ^§  760,  761.  parte  Reed,  100  U.  S.  13. 


HABEAS   CORPUS.  309 

the  arrest  or  imprisonment  of  the  party,  then  there  is  ground  for  a 
discharge  upon  a  hearing  of  the  habeas  corpus.^ 

§  392.  Proceedings  governed  by  the  common  law. — The  proceed- 
ings upon  the  writ  in  the  federal  courts  are  governed  by  the  common 
law  of  England,  as  it  existed  at  the  time  of  the  adoption  of  the 
Constitution,  except  in  respect  to  changes  made  by  acts  of  Congress.^ 
According  to  the  doctrines  of  the  common  law,  the  decision  of  one 
court  or  magistrate  refusing  to  discharge  a  prisoner  was  no  bar  to 
the  issuing  of  other  writs  by  other  courts  or  magistrates  having 
authority  in  such  cases.  And  in  case  of  a  second  or  third  investi- 
gation or  inquiry  into  the  cause  of  the  detention,  the  court  or 
magistrate  can  discharge  the  prisoner  in  the  exercise  of  independ- 
ent powers,  notwithstanding  his  discharge  may  have  been  refused 
by  other  courts  or  magistrates  on  other  writs.^  Thus,  where  a 
person  was  arrested  under  an  extradition  treaty  between  the  United 
States  and  Great  Britain,  and  committed  by  a  commissioner  duly 
authorized  to  hear  and  determine  the  sufficiency  of  the  charge  made, 
and  then  a  habeas  corpus  was  sued  out  by  the  prisoner  before  a 
circuit  court  of  the  United  States,  which  after  a  hearing  dismissed 
the  writ  and  remanded  the  prisoner,  it  was  held  that  this  was  no 
bar  to  an  inquiry  by  a  justice  of  the  Supreme  Court  of  the  United 
States  upon  a  writ  of  habeas  corpus  issued  by  him,  to  inquire  into  the 
legality  of  the  detention  of  the  prisoner  under  such  commitment.* 

§  393.  The  court  cannot  inquire  into  the  facts  of  the  case. — Under 
the  provisions  of  the  Revised  Statutes  relating  to  the  writ,  it  was 
urged  in  a  recent  case  that,  whatever  may  have  been  the  law  or  the 
practice  prior  to  its  enactment,  the  courts  now  have  power,  on  a 
return  to  the  writ,  to  inquire  into  the  merits  of  the  case ;  that, 
taking  into  consideration  all  these  provisions,  it  was  the  duty  of  the 
court  to  ascertain  the  facts  on  which  the  party  is  held,  and  to  decide 
as  an  original  question  whether  the  prisoner  ought  to  be  held  in 
custody,  without  regard  to  the  previous  decision  of  the  court  or 
magistrate  by  whose  order  he  was  committed.     But  the  court  de- 

1  Ex  parte  Lange,  18  Wall.  163  ;  ^  Ex  parte  Kaine,  3  Blatch.  (C.  C.) 
Ex  parte  Siebold,  100  U.  S.  371 ;  Ex  1  ;  Ex  parte  Partington,  13  Mee.  & 
parte  Randolph,  2  Brock.  447  ;  Ex  W.  679 ;  Canadian  Prisoners'  Case,  5 
parte  Davis,  14  L.  R.  301  ;  In  re  Id.  32 ;  The  King  v.  Luddis,  1  East. 
Farez,  7  Blatch.  345.  30G  -,  Burdett  v.  Abbott,   14  Id.  91  ; 

2  Ex  parte  Watkins,  3  Pet.  193  ;  Ex  Walson's  Case,  9  A.  &  E.  731. 
parte  Randolph,  2  Brock.  (C.  0.)  447.  *  Exparte  Kaine,  3  Blatch.  (C.  C.)  1. 


310  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

cided  that  where  a  party  was  held  on  process  issued  on  a  final  judg- 
ment of  a  court  or  on  the  order  of  an  examining  magistrate,  it  had 
no  authority  to  inquire  into  the  evidence  which  led  to  the  conviction 
or  detention  of  the  party ;  that  in  determining  upon  habeas  corpus 
the  "facts"  of  the  case,  the  court  could  not  inquire  into  the  facts 
which  constitute  the  crime  for  which  the  party  is  convicted  or  de- 
tained ;  that  it  could  not  retry  the  case,  but  only  consider  whether 
the  court  or  magistrate  acquired  jurisdiction  of  the  matter,  or 
whether  they  exceeded  their  jurisdiction,  and  whether  they  had  any 
legal  or  competent  evidence  of  facts  before  them  on  which  to  base  a 
judgment  as  to  the  guilt  of  the  accused.^ 

Questions  of  this  character  have  most  frequently  been  presented 
in  the  execution  of  judicial  duties  under  extradition  treaties,  where 
the  person  is  held  in  custody  under  a  commitment  by  a  commissioner. 
The  decision  in  the  case  last  cited  followed  the  current  of  previous 
decisions  on  this  subject.  Thus  in  Ex  parte  Van  Aernam^  it  was 
held  that  the  circuit  court  could  not  sit  in  review  on  the  merits  of 
the  decision  made  by  a  commissioner  in  an  extradition  case,  in  respect 
to  either  the  facts  or  the  law.^  But  the  decisions  on  this  question 
have  not  been  entirely  clear  or  harmonious.*  In  a  case  just  cited,^ 
Judge  Blatchford  reviewed  the  decisions  and  furnished  an  able 
exposition  of  the  law  on  this  subject.  He  observes :  "  The  court 
issuing  the  writ  must  inquire  and  adjudge  whether  the  commissioner 
acquired  jurisdiction  of  the  matter  by  conforming  to  the  require- 
ments of  the  treaty  and  the  statute  ;  whether  he  exceeded  his  juris- 
diction, and  whether  he  had  any  legal  or  competent  evidence  of  facts 
before  him  on  which  to  exercise  a  judgment  as  to  the  criminality  of 
the  accused.  But  such  court  is  not  to  inquire  whether  the  legal 
evidence  of  facts  before  the  commissioner  was  sufficient  or  insuffi- 
cient to  warrant  his  conclusions."  Under  this  decision  error  in  law 
in  the  admission  or  exclusion  of  evidence  before  the  commissioner 


^  In  re  Joseph    Stupp,  12   Blatch.  414,  where  it  was  held  that  in  such 

(C.  C.)  501  (1875) ;  In  re  Frazei*,  7  Id.  cases  the  court  could  not  only  look 

34;  7?j  re  Macdonnell,  11  Id.  170;  In  into  and  pass  upon  the  competency 

re  Stupp,  Id.  124;  Ex  parte  Geissler,  of  evidence,  but  also  its  weight.     See 

4  Fed.  Rep.  188  ;   In  re  Doig,  Id.  193.  also  In  re  Kaine,  14  How.  142. 

2  3  Blatch.  (C.  C.)  160.  ^  In  re  Joseph  Stupp,  supra.   While 

^  See  also  In  re  Ventremaitre,  9  N.  in   custody   under   a  writ  of  habeas 

Y.  Leg.  Obs.  137;  In  re  Heilbron,  12  corpus   he  cannot  be   arrested  on  a 

Id.  65.  second  warrant :  In  re  Francois  Farez, 

*  In  re  Heinrich,  5  Blatch.  (C.  C.)  7  Blatch.  345. 


HABEAS   CORPUS.  311 

would  not  be  considered,  provided  there  was  any  legal  or  competent 
evidence  of  facts  on  which  to  base  the  judgment. 

§  394.  Appeals  to  the  circuit  court. — Section  763  of  the  Revised 
Statutes  provides  for  appeals,  in  certain  cases,  to  the  circuit  courts 
as  follows  :  "  From  the  final  decisions  of  any  court,  justice  or  judge 
inferior  to  the  circuit  court  for  the  district  in  which  the  cause  is 
heard : 

"  1.  In  the  case  of  any  person  alleged  to  be  restrained  of  his 
liberty  in  violation  of  the  Constitution  or  of  any  law  or  treaty  of 
the  United  States. 

"  2.  In  the  case  of  any  prisoner  who,  being  a  subject  or  citizen  of 
a  foreign  state  and  domiciled  therein,  is  committed,  or  confined,  or 
in  custody  by  or  under  the  authority  or  law  of  the  United  States, 
or  of  any  state,  or  process  foun'ded  thereon,  for  or  on  account  of 
any  act  done  or  omitted  under  an  alleged  right,  title,  authority, 
privilege,  protection  or  exemption  set  up  or  claimed  under  the  com- 
mission, order  or  sanction  of  any  foreign  state  or  sovereignty,  the 
validity  and  eff'ect  whereof  depend  upon  the  law  of  nations,  or  under 
color  thereof."  Except  in  the  cases  provided  therein,  no  appeal 
lies  to  a  circuit  court  from  a  decision  of  the  district  court  on  an 
application  for  a  habeas  corpus.^ 

§  395.  Appeal  to  the  Supreme  Court. — It  is  further  provided  by 
section  764  of  the  Revised  Statutes  that  an  appeal  may  be  taken 
from  the  final  decision  of  a  circuit  court,  in  the  cases  mentioned  in 
the  last  clause  of  the  preceding  section. 

Under  the  provisions  of  former  acts  of  Congress,  substantially 
embodied  in  the  foregoing  sections,  it  has  been  held  that,  notwith- 
standing the  provision  made  for  appeal  to  the  Supreme  Court  from 
the  final  decision  of  the  circuit  court,  on  habeas  corpus,  brought  to 
such  court  by  appeal  from  the  decision  of  a  "  court,  justice  or  judge 
inferior  to  the  circuit  court,"  they  did  not  exclude  the  appellate 
jurisdiction  of  the  Supreme  Court  in  cases  where  the  circuit  court 
exercised  original  jurisdiction  on  habeas  corpus.^  Although  the 
limitation  made  by  section  764  of  the  Revised  Statutes  would  cut 
oif  any  right  of  appeal  of  cases  described  in  the  first  clause  of 
the  preceding  section,  it  would  not  affect  the  right  of  appeal  in 
those  cases  where  the  circuit  court  exercised  original  jurisdiction. 

1  Seavy  v.  Sevmour,  3  Cliff.  439.  (1867)  ;  Ex  parte  Yerger,  S  Wall.  85 

2  Ex  parte  McCardle,  6  Wall.  318     (1868). 


312  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE, 

Thej  would  fall  within  the  reason  and  the  principle  of  the  cases 
last  cited,  and  the  right  to  an  appeal  would  he  clear.  In  Ex 
'parte  McCardle,  Chase,  C.  J.,  who  gave  the  opinion  of  the  court, 
observed:  "From  decisions  of  a  judge  or  a  district  court  appeals 
lie  to  the  circuit  court,  and  from  the  circuit  court  court  to  this 
court.  But  each  circuit  court,  as  well  as  each  district  court  and 
each  judge,  may  exercise  the  original  jurisdiction  ;  and  no  satisfac- 
tory reason  can  be  assigned  for  giving  appeals  to  this  court  from  the 
circuit  court  rendered  on  appeal,  and  not  giving  like  appeals  from 
judgments  of  circuit  courts  rendered  in  the  exercise  of  original  juris- 
diction. If  any  class  of  cases  was  to  be  excluded  from  the  right  of 
appeal,  the  exclusion  would  naturally  apply  to  cases  brought  into 
the  circuit  court  by  appeal  rather  than  to  cases  originating  there. 
In  the  former  description  of  cases 'the  petitioner  for  the  writ,  with- 
out appeal  to  this  court,  would  have  the  advantage  of  at  least  two 
hearings,  while  in  the  latter,  upon  the  hypothesis  of  no  appeal,  the 
petitioner  would  have  but  one."^ 

This  interpretation  of  the  statutes  was  followed  in  Ex  parte 
Yerger,^  where  the  broad  proposition  was  maintained  that  the 
appellate  jurisdiction  of  the  Supreme  Court  in  such  cases  was  con- 
ferred by  the  Constitution,  except  such  as  come  within  some  limita- 
tions of  the  jurisdiction  by  acts  of  Congress ;  and  there  being  no 
such  limitation  applicable  to  appeals  from  the  original  cognizance 
of  the  circuit  court  in  habeas  corpus  cases,  that  court  could  enter- 
tain jurisdiction  of  such  appeals.  In  this  case  the  court  further  held 
that  on  appeals  it  had  jurisdiction  to  inquire  into  the  lawfulness  of 
the  detention  and  relieve  from  it  if  found  unlawful,  even  where  the 
detention  complained  of  was  not  by  virtue  of  civil  authority  nor 
under  the  order  of  an  inferior  court,  but  by  military  officers  for  a 
trial  before  a  military  tribunal,  and  after  an  examination  into  the 
cause  of  the  detention  by  the  inferior  court,  resulting  in  an  order 
remanding  the  prisoner  to  custody. 

§  396.  In  cases  involving  the  law  of  nations. — It  is  further  pro- 
vided that  "  when  a  writ  of  habeas  corpus  is  issued  in  the  case  of 
any  prisoner  who,  being  a  subject  or  citizen  of  a  foreign  state  and 
domiciled  therein,  is  committed  or  confined  or  in  custody  by  or 

^  As  to  the  power  of  the  Supreme  pus  in  the  exercise  of  original  juris- 

Court    and    of    district    and    circuit  diction,  see  Rev.   Stat.  ||  751,  752: 

courts,  and  the  justices  and  judges  ante,  §  389. 

thereof,  to  issue  writs  of  habeas  cor-  ^  Supra. 


HABEAS   CORPUS.  31 3 

under  the  authority  or  law  of  any  one  of  the  United  States,  or 
process  founded  thereon,  on  account  of  any  act  done  or  omitted 
under  any  alleged  right,  title,  authority,  privilege,  protection  or 
exemption,-  claimed  under  the  commission  or  order  or  sanction  of 
any  foreign  state,  or  under  color  thereof,  the  validity  and  effect 
whereof  depend  upon  the  law  of  nations,  notice  of  the  said  proceed- 
ing, to  be  prescribed  by  the  court  or  justice  or  judge  at  the  time  of 
granting  said  writ,  shall  be  served  on  the  attorney-general  or  other 
oflBcer  prosecuting  the  pleas  of  said  state,  and  due  proof  of  such 
service  shall  be  made  to  the  court  or  judge  before  the  hearing."  ^ 

§  397.  Appeals,  how  taken. — Appeals  on  habeas  corpus  can  only 
be  taken  on  "  such  terms  and  under  such  regulations  and  orders, 
as  well  for  the  custody  and  appearance  of  the  person  alleged  to  be 
in  prison,  or  confined,  or  restrained  from  his  liberty,  as  for  sending 
up  to  the  appellate  tribunal  a  transcript  of  the  petition,  writ  of  ha- 
beas corpus,  return  thereto,  and  other  proceedings,  as  may  be  pre- 
scribed by  the  Supreme  Court,  or,  in  default  thereof,  by  the  court 
or  judge  hearing  the  cause."  ^  And  pending  the  proceedings  or 
appeal,  "  and  until  final  judgment  therein,  and  after  final  judgment 
of  discharge,  any  proceeding  against  the  person  so  imprisoned  or 
confined  or  restrained  of  his  liberty,  in  any  state  court,  or  by  or 
under  the  authority  of  any  state  court,  or  by  or  under  the  authority 
of  any  state,  for  any  matter  so  heard  and  determined,  or  in  pro- 
cess of  being  heard  and  determined,  under  such  writ  of  habeas 
corpus,  shall  be  deemed  null  and  void."  ^ 

1  Rev.  Stat.  |  762.  ^  j^^^  gt^t.  g  766, 

2  Rev.  Stat,  f  765. 


CHAPTER  XVIII. 

COURT    OF    CLAIMS — JURISDICTION,    PLEADING,    PRACTICE    AND 
PROCEDURE. 

§  398.  A  fundamental  principle :  governments  or  sovereignties 
cannot  be  sued. — It  is  a  familiar  doctrine  of  the  common  law  that 
a  state,  nation  or  sovereignty  cannot  be  sued  in  its  own  courts 
without  its  consent.^  It  is  manifest,  however,  that  all  civilized 
nations  must,  in  the  usual  course  of  their  affairs,  enter  into  con- 
tracts, and,  in  the  execution  of  their  various  functions  and  duties, 
become  justly  liable  to  private  persons  and  corporations.  Previous 
to  the  act  of  Congress  of  February  24,  1855,  the  only  remedy  for 
a  party  having  a  claim  against  our  government  was  by  petition  to 
Congress  for  special  legislative  action  in  the  particular  case,  and  if 
granted,  a  particular  appropriation  was  necessary  to  satisfy  the 
same.  The  act  providing  for  a  Court  of  Claims  was  passed  to 
remedy  a  great  mischief,  to  avoid  many  grievous  wrongs,  and  to 
promote  justice,  and  it  has  been  liberally  construed  to  accomplish 
the  object  intended.^  It  provided  for  the  organization  and  sessions 
of  a  Court  of  Claims,  and  gave  it  jurisdiction  to  hear  and  determine 
all  claims  founded  upon  any  law  of  Congress,  or  upon  any  regu- 
lation of  an  executive  department,  or  upon  any  contract,  express  or 
implied,  with  the  government  of  the  United  States,  and  all  claims 
which  might  be  referred  to  it  by  either  house  of  Congress ;  ^  and  it 
made  further  provisions  for  practice  and  procedure  in  said  court.* 

'  "  Immunity  from  suit  is  an  inci-  court,  and  published  in  the  Southern 

dent   of  sovereignty :"     Mr.   Justice  Law  Review. 

Daniels,  in  Bonner  v.  United  States,  He  says :    "  Previous  to    the   year 

9  Wall.  156;  United  States  w.  McLe-  eighteen   hundred  and  fifty-four  the 

more,  4  How.  286.  accumulation  of  private  claims  against 

-  Brown  v.   The  United    States,   6  the  government  of  the  United  States 

Ct.  C.  C.  171.  presented   to   Congress  for  examina- 

'  Act  Feb.  24,  1855,  c.   122,    s.  1,  tion  and  relief  had,  at  various  times, 

V.  10,  p.  612.  engaged  the  attention  of  senators  and 

^  A  statement  of  the  causes  which  representatives.  It  was  seen  and 
led  to  the  establishment  of  the  Court  acknowledged  by  them  all  that  it  was 
of  Claims,  and  an  interesting  and  beyond  the  power  of  Congress  or  its 
succinct  history  of  the  same,  has  been  committees  to  make  a  thorough  in- 
prepared  by  the  Hon.  William  A.  vestigation  of  those  claims,  or  to  act 
Richardson,  one  of  the  judges  of  the  intelligently  upon  the  large  and  con- 


COURT   OF   CLAIMS. 


315 


Since  the  original  act  providing  for  this  court  was  adopted,  additional 
powers  have  at  various  times  been  conferred  upon  it,  and  additional 


stantly  increasinji  number  of  petitions 
introduced  at  each  session  in  behalf 
of  persons  havinf^  claims  of  various 
kinds  for  which  they  sought  relief. 
Claimants  had  gone  to  Congress,  and 
■would  continue  to  go  there,  as  a  mat- 
ter of  right  secured  to  them  by  the 
first  article  of  the  amendments  to  the 
Constitution  of  the  United  States, 
guaranteeing  to  the  people  the  privi- 
lege to  petition  the  government  for 
redress  of  grievances. 

"It  was  seriously  felt  both  in  and 
out  of  Congress  that  the  constitu- 
tional guaranty  was  of  little  value, 
and  was  substantially  violated  if  pri- 
vate claimants  against  the  govern- 
ment were  allowed  merely  the  naked 
right  to  have  their  petitions  presented, 
without  any  further  investigation  and 
consideration. 

"  To  neglect  to  hear  petitioners,  or 
not  to  act  upon  their  complaints  when 
heard,  was  practically  the  same  to 
them  as  would  be  the  effect  of  a  law 
expressly  abridging  the  right  of  peti- 
tion in  direct  and  flagrant  violation 
of  the  Constitution. 

"And  yet  such  was  the  extent  of 
these  claims,  and  the  difficulty  of 
reaching  the  real  facts  in  each  case, 
that  few  of  them  were  ever  acted 
upon,  and  many  honest  creditors  of 
the  United  States  were  turned  away 
without  a  hearing,  and  others  were 
deterred  from  presenting  their  peti- 
tions for  redress  by  the  difficulties  in 
the  way  of  ever  reaching  a  final  de- 
termination, while  it  was  occasionally 
found  that,  upon  hasty  consideration 
or  imperfect  ex  'parte  evidence,  a 
claim  was  allowed  and  paid  which 
was,  to  say  the  least,  of  doubtful 
validity. 

"  Committees  could  not  constitute 
themselves  courts  for  the  trial  of 
facts.  They  had  not  the  time  to  de- 
vote to  that  kind  of  investigation,  to 
the  interruption  or  exclusion  of  their 
duties  to  the  country  on  the  great 
national  questions  which  were  always 
pending  in  Congress.  They  could 
not  efi"ectively  examine  the  claimants' 
witnesses  to  any  great  extent  before 


themselves,  and  they  were  not  suf- 
ficiently familiar  with  the  matters  in 
controversy  to  be  able  to  procure 
witnesses  for  the  government.  Claim- 
ants, in  fact,  presented  only  ex  parte 
cases,  supported  by  affidavits  and  the 
influence  of  such  friends  as  they 
could  induce  to  appear  before  the 
committees  in  open  session,  or  to  see 
the  members  in  private.  No  counsel 
appeared  to  watch  and  defend  the 
interest  of  the  government.  Com- 
mittees were,  therefore,  perplexed 
beyond  measure  with  this  class  of 
business,  and  most  frequently  found 
it  more  convenient  and  more  safe  not 
to  act  at  all  upon  those  claims  which 
called  for  much  investigation,  espe- 
cially when  the  amounts  involved 
seemed  large.  Moreover,  when  bills 
for  relief  in  meritorious  cases  were  re- 
ported, few  of  them  were  acted  upon 
tsy  either  house,  or,  if  passed  by  one, 
were  not  brought  to  a  vote  in  the 
other  house,  and  so  fell  at  the  final 
adjournment,  and  if  ever  revived, 
had  to  be  begun  again  before  a  new 
Congress  and  a  new  committee,  and 
so  on  year  after  year  and  Congress 
after  Congress. 

"  Several  plans  for  relief  were  from 
time  to  time  proposed  by  bills,  reso- 
lutions or  motions,  or  were  suggested 
by  senators  and  representatives  in 
the  course  of  debate.  But  no  measure 
was  carefully  and  fully  considered 
until  the  second  session  of  the  Thirty- 
third  Congress,  in  the  year  eighteen 
hundred  and  fifty-four. 

"  On  the  sixth  of  December  of  that 
year  Senator  Brodhead,  of  Pennsyl- 
vania, in  pursuance  of  previous  notice, 
asked  and  obtained  leave  to  introduce 
a  bill  establishing  a  commission  for 
the  examination  and  adjustment  of 
private  claims,  which  was  read  a  first 
and  second  time  by  its  title  and  refer- 
red to  the  Committee  on  Claims.  This 
was  a  carefully-drawn  and  well-pre- 
pared bill.  It  iiad  evidently  been  con- 
sidered by  members  of  the  committee 
and  had  their  concurrence  before  its 
introduction,  for  it  was  soon  reported 
back  without  amendment.    When  the 


316 


FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 


regulations  made  as  to  practice  and  procedure  therein 
amount  of  business  is  now  annually  transacted  by  it. 


and  a  large 


bill  came  up  for  discussion  in  the  Sen- 
ate, it  soon  became  apparent  that  the 
prevailing  opinion  of  members  was 
that  somethincr  more  was  needed  than 
a  mere  commission,  with  its  members 
appointed  for  a  term  of  years,  or  re- 
movable at  the  pleasure  of  the  Execu- 
tive. It  was  seen  that  there  would 
be  frequent  changes  of  commissioners 
with  the  change  of  parties  on  the  in- 
coming of  new  administrations,  and 
that  with  the  constant  liability  of  re- 
moval the  independence  of  the  com- 
missioners would  be  greatly  weakened 
and  their  usefulness  much  impaired. 
Besides,  men  of  ability  and  learning 
in  the  law  would  not  give  up  their 
position  and  practice  to  accept  such 
semi-judicial  offices,  subject  to  removal 
at  any  time.  The  desire  expressed  was 
to  have  an  independent  and  perma- 
nent tribunal,  which  should  pass  upon 
the  claims  made  against  the  govern- 
ment with  all  the  formalities,  safe- 
guards and  judicial  learning  which 
distinguish  courts  of  justice  estab- 
lished for  the  trial  of  causes  between 
individuals. 

"  Senator  Hunter,  of  Virginia,  sug- 
gested some  amendments  and  pro- 
posed the  appointment  of  judges  with 
life  tenure,  instead  of  commissioners, 
as  the  best  means  of  securing  that 
complete  independence  which  it  was 
important  to  establish,  and  of  obtain- 
ing the  best  men  to  fill  the  positions. 
He  said : 

"  '  When  these  safeguards  are  pro- 
vided, I  think  we  should  establish  the 
most  admirable  tribunal  for  doing  j  us- 
tice  to  private  claimants,  and,  at  the 
same  time,  for  throwing  proper  checks 
about  the  treasury  of  the  United 
States,  that  could  be  established.' 

"  After  this  discussion  the  bill  was 
referred  on  the  18th  of  December, 
1854,  to  a  select  committee  composed 
of  Senators  Brodhead  of  Pennsyl- 
vania, Jones  of  Tennessee,  Hunter 
of  Virginia,  Clayton  of  Delaware  and 
Clay  of  Alabama.  On  the  20th  of 
December  this  committee  reported  a 
substitute  entitled  'An  act  to  estab- 
lish a  court  for  the  investigation  of 


claims  against  the  United  States.' 
This  bill  differed  from  the  former  one 
very  little,  except  in  the  important 
feature  of  establishing  a  permanent 
and  independent  court  instead  of  a 
commission.  The  bill  thus  drawn 
met  the  approval  of  the  Senate,  and 
on  the  21st  of  December  it  passed 
that  body  without  a  vote  recorded 
against  it. 

"  The  bill  reached  the  House  of 
Representatives  on  the  24th  of  De- 
cember, and  was  referred  first  to  the 
judiciary  committee,  but  this  refer- 
ence was  changed,  and  it  was  sent  to 
the  committee  on  claims.  It  was 
soon  reported  back  with  some  amend- 
ments which  did  not  alter  the  main 
features  of  the  bill,  and  was  passed 
by  the  House  on  the  23d  of  February, 
1855,  by  a  vote  of  150  to  46.  Two 
days  after,  Februai-y  25,  the  bill  was 
signed  by  the  President  and  became 
a  law. 

"  The  act  required  the  appointment 
of  three  judges  by  the  President,  by 
and  with  the  advice  and  consent  of 
the  Senate,  to  hold  their  offices  dui-- 
ing  good  behavior.  President  Pierce 
appointed  two  of  them  on  the  3d  of 
March,  and  the  other  on  the  8th  of 
May,  1855.  They  organized  on  the 
11th  of  May,  1855,  making  choice  of 
Judge  Gilchrist  as  presiding  judge, 
and  immediately  entered  upon  the 
discharge  of  their  duties. 

"  The  magnitude  and  difficulties  of 
the  business  of  the  court,  with  its  pe- 
culiar jurisdiction,  are  well  presented 
in  3  report  made  to  Congress  by  Judge 
Gilchrist,  for  himself  and  his  associ- 
ates, bearing  date  June  23,  1856, 
from  which  the  following  extracts  are 
taken  : 

"  '  As  to  the  business  of  the  court, 
we  are  convinced  that  no  one  who  has 
not  had  personal  experience  on  the 
subject  can  have  any  correct  idea  of 
its  diversity,  its  intricacy,  its  perplex- 
ity, the  exhausting  labor  necessa"ry  for 
its  investigation,  or  the  large  sum  of 
money  it  involves.  Until  the  institu- 
tion of  this  court,  there  had  never  been 
anything    like  a   systematic   inquiry 


COURT   OF   CLAIMS. 


317 


We  will  now  proceed  to  consider  the  organization  of  said  court 
and  its  sessions,  after  which  we  will  treat  of  its  present  jurisdiction, 
and  of  pleading,  practice  and  procedure  therein. 


into  the  modes  of  action  by  the  gov- 
ernment through  the  executive  de- 
partments, or  the  relation  in  regard 
to  contracts  and  the  liabilities  arising 
therefrom  which  the  government  bore 
to  the  citizens.  It  was  inevitable,  and 
it  is  astonishing  that  it  should  not  have 
been  sooner  perceived,  that  among 
twenty-five  millions  of  people,  inhab- 
iting the  almost  boundless  territory 
comprehended  by  the  Union,  innu- 
merable questions  of  the  most  diffi- 
cult and  delicate  nature  must  have 
arisen,  delays  in  the  decision  of  which 
were  alike  discreditable  to  the  moral 
sense  of  the  people,  and  the  public 
ftiith  of  the  government,  of  which  the 
people  were  the  foundation.  It  has 
i)een  often  asserted  and  proved  by 
the  experience  of  the  British  Parlia- 
ment that  legislative  bodies  are  un- 
fitted, by  the  pressure  of  great  public 
interests,  for  careful  judicial  inves- 
tigation into  private  rights.  The  con- 
sequence has  been  in  our  country  that 
claims  accumulated  until  their  mag- 
nitude repressed  all  willingness  to  in- 
vestigate them,  and  a  state  of  things 
arose  which  made  it  hopeless  almost 
to  present  a  claim  against  the  United 
States  with  any  prospect  of  a  decision. 
Such  was  the  condition  of  aifairs  when 
we  entered  upon  the  discharge  of  our 
duties.  Our  field  of  action  was  en- 
tirely new.  We  had  no  precedents  to 
guide  us.  It  was  necessary  at  once 
to  adopt  some  system  of  rules  for  the 
transaction  of  business.  The  ordi- 
nary rules  of  practice  in  courts  of 
law  were  obviously  inapplicable. 
We  were  forced  to  adopt  rules  in 
advance  of  any  experience  upon  the 
subject,  conscious  that  we  should  be 
forced  often  to  modify  and  sometimes 
to  abrogate  them.  We  found  numer- 
ous cases  involving  questions  entirely 
out  of  the  path  of  ordinary  legal  in- 
vestigation, requiring  a  degree  of 
care  and  study  rarely  necessary  in 
courts  of  justice.  Cases  of  contracts, 
intricate  in  their  details,  imperfectly 
defined  by  the  evidence,  reducible 
with  difficulty  to  any  legal  principles. 


and  enormous  in  amount,  met  us  at 
the  threshold.  Cases  involving  the 
proper  construction  of  treaties,  im- 
portant questions  of  public  law,  and 
that  most  difficult  and  delicate  of  all 
questions,  the  responsibility  of  the 
United  States  to  their  citizens,  were 
laid  before  us.  The  construction  of 
acts  of  Congress,  the  legitimate  powers 
of  the  executive  departments,  the  du- 
ties and  liabilities  of  government  offi- 
cers, the  constitutional  powers  of  the 
general  government,  the  duties  of  neu- 
tral nations,  and  questions  arising  out 
of  a  state  of  war,  were  all,  directly  or 
incidentally,  to  be  inquired  into.  It 
cannot  be  presumed  that,  with  a  due 
regard  to  our  own  reputation  or  to 
our  official  oaths,  we  were  disposed  to 
pass  lightly  upon  questions  of  such 
momentous  importance.  Our  object 
has  been  to  give  each  case  such  a  de- 
gree of  care  and  patient  attention  as 
would  enable  us  to  use  it  as  a  prece- 
dent in  subsequent  cases  of  a  like 
character.  Our  desire  has  been,  not 
to  get  rid  of  the  cases,  but  to  decide 
them  ;  and  in  order  to  do  that  they 
must  be  carefully  examined.' 

"  The  original  act  provided  that  at 
the  commencement  of  each  session  of 
Congress,  and  at  the  commencement  of 
each  month  during  the  session,  the 
court  should  report  the  cases  upon 
which  they  should  have  finally  acted, 
stating  in  Ciich  the  material  facts  which 
they  found  established  by  the  evi- 
dence, with  their  opinion  in  the  case, 
and  the  reasons  upon  which  such 
opinion  was  founded,  and  the  opinion 
of  any  judge  who  should  dissent  from 
the  majority.  It  also  directed  the 
court  to  prepare  a  bill  or  bills  in  those 
cases  which  received  the  favorable 
decision  thereof  in  such  form  as,  if 
enacted,  would  carry  the  same  into 
efi'ect.  These  provisions  might  per- 
haps have  accomplished  the  desired 
result,  and  have  proved  satisfactory, 
had  they  not  been  accompanied  with 
others  which  delayed  and  embarrassed 
the  proceedings  thereon  in  Congress, 
and,  to  a  large   extent,  actually  pre- 


318 


FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 


§  399.  Organization  and  sessions  of  the  Court  of  Claims. — In  re- 
gard to  the  organization  and  sessions  of  the  Court  of  Claims,  the 
Revised  Statutes  provide  as  follows : 

Judges. — Sec.  1049.   The  Court  of  Claims,  established  by  the 


vented  any  final  action  whatever.  It 
required  the  court  to  transmit,  with 
the  reports,  the  briefs  of  the  solicitor 
for  the  government  and  of  the  claim- 
ant, and  the  testimony  in  each  case. 

"  The  claims  reported  upon  adverse- 
ly were,  by  the  terms  of  the  act,  to 
be  placed  on  the  calendar ;  and  all 
reports  and  bills  from  the  court  were 
to  be  continued  from  session  to  ses- 
sion, and  from  Congress  to  Congress, 
until  finally  acted  upon.  But  claims 
reported  favorably  upon,  and  the  ac- 
companying bills,  were  not  required 
to  be  placed  upon  the  calendar.  At 
the  very  outset,  when  the  first  report 
came  in,  the  question  arose  as  to  what 
was  to  be  done  with  the  favorable  re- 
ports and  bills.  It  was  decided  to 
refer  them  to  the  committee  on  claims, 
and  that  course  was  ever  after  fol- 
lowed while  the  system  of  reporting 
to  Congress  continued. 

"  The  committee  on  claims  finding 
a  mass  of  evidence,  with  the  briefs  in 
each  case,  referred  to  them,  very  nat- 
urally felt  that  it  was  their  duty  to 
go  carefully  over  the  whole  matter,  to 
read  all  the  evidence,  and  to  examine 
the  briefs  of  the  claimant  and  of  the 
solicitor  for  the  government.  Claim- 
ants were  uneasy  and  pressing,  and 
the  troubles  and  perplexities  of  the 
members  of  the  committee  were  nu- 
merous. To  hear  the  cases  anew,  or 
to  examine  all  the  papers  in  each  case 
and  submit  the  questions  which  were 
raised  on  the  facts  and  the  law  to  the 
decision  of  the  committee,  would  re- 
quire more  time  and  labor  of  the 
members  than  it  was  possible  to  de- 
vote to  such  duty.  If  the  work  which 
the  court  had  done  was  thus  to  be  all 
gone  over  again  in  committee,  little 
was  gained  by  reference  to  the  court 
at  all.  In  fact  it  was  a  positive  loss 
and  injury  to  the  claimants,  because 
they  were  forced  to  try  their  cases 
twice,  while  neither  Congress  nor 
claimants  obtained  relief.  Favorable 
reports  were  often  not  concurred  in  or 


not  acted  upon  at  all,  and  were  finally 
lost  altogether. 

"  This  was  not  what  the  friends  of 
the  act  establishing  the  court  intended, 
nor  what  they  hoped  and  expected  to 
accomplish.  In  discussing  the  orig- 
inal bill  in  the  Senate  in  December, 
1854,  Senator  Hunter,  of  Virginia, 
had  said :  '  I  take  it  for  granted  that 
there  would  scarcely  be  a  case  in 
which  Congress  would  not  concur  in 
the  decision  of  a  court  thus  estab- 
lished.' It  was  no  doubt  supposed, 
as  was  said  at  a  later  date  by  a  mem- 
ber of  the  House  from  Pennsylvania, 
that  the  bills  reported  by  the  court 
would  be  read  over  by  the  committee 
simply  to  '  see  whether  there  was 
anything  contained  in  them  which 
might  be  considered  as  trenching  on 
the  privileges  or  rights  of  the  House, 
and  if  there  were  not,  that  they  might 
be  reported  back  for  the  House  to  act 
on  them.' 

•  "  It  was  not  foreseen  that  the  com- 
mittee would  feel  reluctant  to  take 
the  responsibility  of  reporting  back 
the  bills  without  examination  of  the 
evidence  upon  which  they  were 
founded,  evidence  which  the  law  re- 
quired should  be  submitted  to  Con- 
gress, and  which  had  been  referred 
to  them  by  vote  of  the  House.  Such 
was  the  inevitable  consequence  of 
laying  the  whole  record  in  each  case 
before  Congress,  and  it  defeated  one 
great  object  of  the  act  establishing 
the  court,  that  of  relieving  Congress 
from  the  consideration  of  private 
claims  upon  the  evidence.  When  this 
became  apparent  from  actual  experi- 
ence, Congress,  ever  ready  as  it  has 
been  to  sustain  and  increase  the  use- 
fulness of  the  court,  made  important 
and  radical  changes  and  improve- 
ments in  the  organic  act. 

"  On  the  3d  of  March,  1863,  an 
amendatory  act  was  passed,  of  which 
the  most  material  alterations  were 
these : 

"Two  additional  judges  were  added 


COURT    OF    CLAIMS. 


319 


act  of  February  24,  1855,  shall  be  continued.  It  shall  consist  of  a 
chief  justice  and  four  judges,  who  shall  be  appointed  by  the  Presi- 
dent, by  and  with  the  advice  and  consent  of  the  Senate,  and  hold 
their  offices  during  good  behavior.  Each  of  them  shall  take  an 
oath  to  support  the  Constitution  of  the  United  States  and  to  dis- 
charge faithfully  the  duties  of  his  office,  and  shall  be  entitled  to 
receive  an  annual  salary  of  four  thousand  five  hundred  dollars, 
payable  quarterly  from  the  treasury. 

Seal. — Sec.  1050.  The  Court  of  Claims  shall  have  a  seal,  with 
such  device  as  it  may  order. 

Court-rooms,  etc.,  how  provided.— /S'ec.  1051.  It  shall  be  the 
duty  of  the  Speaker  of  the  House  of  Representatives  to  appropriate 
such  rooms  in  the  Capitol  at  Washington,  for  the  use  of  the  Court 
of  Claims,  as  may  be  necessary  for  their  accommodation,  unless  it 
appears  to  him  that  such  rooms  cannot  be  so  appropriated  without 
interfering  with  the  business  of  Congress,  In  that  case  the  court 
shall  procure,  at  the  city  of  Washington,  such  rooms  as  may  be 
necessary  for  the  transaction  of  their  business. 


to  the  court,  making  the  number  five. 
An  appeal  was  allowed  to  the  Su- 
preme Court  by  either  party  where 
the  amount  should  exceed  three  thou- 
sand dollars,  and  by  the  defendants 
in  other  cases.  Every  judgment  was 
to  be  paid  '  out  of  any  general  appro- 
priation made  by  law  for  the  payment 
and  satisfaction  of  private  claims,  on 
presentation  to  the  Secretary  of  the 
Treasury  of  a  copy  of  said  judgment, 
certified  by  the  clerk  of  the  Court  of 
Claims,  and  signed  by  the  Chief  Jus- 
tice, or  in  his  absence  by  the  pre- 
siding judge.'  Interest  was  to  be 
allowed  upon  judgments  in  certain 
cases  in  favor  of  claimants,  when  on 
appeal  to  the  Supreme  Court  the  same 
should  be  affirmed.  The  former  re- 
quirement that  the  court  should  send 
to  Congress  the  records,  evidence, 
judgments  and  bills  was  done  away 
with. 

"  These  provisions  still  stand  as  the 
existing  law. 

"  Some  other  amendments  were 
made  by  the  act  relating  to  jurisdic- 
tion which  we  shall  refer  to  hereafter, 
and  others  in  relation  to  details  of 
less  consequence. 


"  The  last  section  of  the  act  led  to 
some  difficulty.  It  provided  that  no 
money  should  be  paid  out  of  the 
treasury  for  any  claim  passed  upon 
by  the  court  till  after  an  appropria- 
tion therefor  should  be  estimated  for 
by  the  Secretary  of  the  Treasury. 
The  Supreme  Court  held  that  this  au- 
thority given  to  the  head  of  an  execu- 
tive department,  by  necessary  impli- 
cation, to  revise  the  decision  of  the 
Court  of  Claims  requiring  the  pay- 
ment of  money,  denied  to  it  the  j  udicial 
power  from  the  exercise  of  which 
appeals  could  be  taken  to  that  court, 
and  they  refused  to  take  jurisdiction 
of  any  appeals  from  the  Court  of 
Claims.  When  that  decision  was  pro- 
mulgated, Congress,  in  March,  1866, 
repealed  the  section  referred  to,  and 
the  Supreme  Court  has  ever  since  en- 
tertained jurisdiction  of  such  appeals. 

"  From  that  time  the  business  of 
the  court  has  gone  on  smoothly,  with 
no  other  difficulties  than  those  incident 
to  the  trial  and  investigation  of  cases 
of  such  magnitude,  involving  such  in- 
tricate and  peculiar  questions  as  do 
those  which  come  before  this  court."' 


820  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

Sessions. — See.  1052.  The  Court  of  Claims  shall  hold  one  annual 
session,  at  the  city  of  Washington,  beginning  on  the  first  Monday 
in  December  and  continuing  as  long  as  may  be  necessary  for  the 
prompt  disposition  of  the  business  of  the  court. 

Quorum. — And  any  two  of  the  judges  of  said  court  shall  con- 
stitute a  quorum,  and  may  hold  a  court  for  the  transaction  of 
business.^ 

Officers  of  the  court. — Sec.  1053.  The  said  court  shall  ap- 
point a  chief  clerk,  an  assistant  clerk  if  deemed  necessary,  a  bailiff 
and  a  messenger.  The  clerks  shall  take  an  oath  for  the  faithful 
discharge  of  their  duties,  and  shall  be  under  the  direction  of  the 
court  in  the  performance  thereof;  and  for  misconduct  or  incapacity 
they  may  be  removed  by  it  from  office ;  but  the  court  shall  report 
such  removals,  with  the  cause  thereof,  to  Congress,  if  in  session,  or, 
if  not,  at  the  next  session.  The  bailiff  shall  hold  his  office  for  a 
term  of  four  years,  unless  sooner  removed  by  the  court  for  cause. 

Salaries  of  clerks,  bailiff  and  messenger. — Sec.  1054.  The 
salary  of  the  chief  clerk  shall  be  three  thousand  dollars  a  year,  of 
the  assistant  clerk  two  thousand  dollars  a  year,  of  the  bailiff  fifteen 
hundred  dollars  a  year,  and  of  the  messenger  eight  hundred  and 
forty  dollars  a  year,  payable  quarterly  from  the  treasury. 

Clerk's  bond. — Sec.  1055.  The  chief  clerk  shall  give  bond  to 
the  United  States  in  such  amount,  in  such  form  and  with  such 
security  as  shall  be  approved  by  the  Secretary  of  the  Treasury. 

Contingent  fund. — See.  1056.  The  said  clerk  shall  have  au- 
tliority,  when  he  has  given  bond  as  provided  in  the  preceding  sec- 
tion, to  disburse,  under  the  direction  of  the  court,  the  contingent 
fund  which  may  from  time  to  time  be  appropriated  for  its  use ;  and 
his  accounts  shall  be  settled  by  the  proper  accounting  officers  of  the 
treasury  in  the  same  Avay  as  the  accounts  of  other  disbursing  agents 
of  the  government  are  settled. 

Reports  to  Congress;  copies  for  departments,  etc. — Sec. 
1057.  On  the  first  day  of  every  December  session  of  Congress,  the 
clerk  of  the  Court  of  Claims  shall  transmit  to  Congress  a  full  and 
complete  statement  of  all  judgments  rendered  by  the  court  during 
the  previous  year,  stating  the  amounts  thereof  and  the  parties  in 
whose  favor  they  were  rendered,  together  with  a  brief  synopsis  of 

^  The  act  of  1874,  ch.  468,  requires    three  judges  to  make  a  quorum  or 

enter  any  judgment. 


COURT    OF    CLAIMS.  3£I 

the  nature  of  the  claims  upon  which  they  were  rendered.  At  the 
end  of  every  term  of  the  court  he  is  required  to  transmit  a  copy  of 
its  decisions  to  the  heads  of  departments ;  to  the  Solicitor,  the 
Comptrollers  and  the  Auditors  of  the  Treasury;  to  the  Commis- 
sioners of  the  General  Land-Office  and  of  Indian  Affairs ;  and  to 
the  chiefs  of  bureaus,  and  to  other  officers  charged  with  the  adjust- 
ment of  claims  against  the  United  States. 

Members  of  Congress  not  to  practice  in  the  court. — Sec. 
1058.  Members  of  either  house  of  Congress  shall  not  practice  ia 
the  Court  of  Claims. 

§  400.  Jurisdiction,  pleading,  practice  and  procedure  of  the  Court 
of  Claims. — The  Revised  Statutes  and  the  amendments  thereof  pro- 
vide as  follows  in  reference  to  the  jurisdiction,  powers  and  pro- 
cedure of  the  Court  of  Claims  : 

Jurisdiction  of  claims  founded  on  statutes  or  contracts, 
OR  REFERRED  BY  CoNGRESS. — Sec.  1059.  The  Court  of  Claims 
shall  have  jurisdiction  to  hear  and  determine  the  following  matters: 

First.  All  claims  founded  upon  any  law  of  Congress,  or  upon 
any  regulation  of  an  executive  department,  or  upon  any  contract,, 
expressed  or  implied,  with  the  government  of  the  United  States, 
and  all  claims  which  may  be  referred  to  it  by  either  house  of  Con- 
gress. 

Jurisdiction  of  set-offs  and  counter-claims  of  United 
States. — Second.  All  set-offs,  counter-claims,  claims  for  damages, 
whether  liquidated  or  unliquidated,  or  other  demands  whatsoever, 
on  the  part  of  the  government  of  the  United  States  against  any 
person  making  claim  against  the  government  in  said  court. 

Jurisdiction  of  claims  of  disbursing  officers  for  losses, 
etc. — Third.  The  claim  of  any  paymaster,  quartermaster,  com- 
missary of  subsistence  or  other  disbursing  officer  of  the  United 
States,  or  of  his  administrators  or  executors,  for  relief  from  re- 
sponsibility on  account  of  capture  or  otherwise,  while  in  the  line 
of  his  duty,  of  government  funds,  vouchers,  records  or  papers  in 
his  charge,  and  for  which  such  officer  was  and  is  held  responsible. 

Jurisdiction  of  claims  for  captured  and  abandoned  prop- 
erty.— Fourth.  Of  all  claims  for  the  proceeds  of  captured  or 
abandoned  property,  as  provided  by  the  act  of  March  12,  1863, 
chapter  120,  entitled  "An  act  to  provide  for  the  collection  of 
abandoned  property,  and  for  the  prevention  of  frauds  in  insurrec- 
21 


322  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

tionary  districts  within  the  United  States,"  or  hy  the  act  of  July 
2,  1864,  chapter  225,  being  an  act  in  addition  thereto;  provided^ 
that  the  remedy  given  in  cases  of  seizure  under  the  said  acts,  by 
preferring  claim  in  the  Court  of  Claims,  shall  be  exclusive,  pre- 
cluding the  owner  of  any  property  taken  by  agents  of  the  Treasury 
Department  as  abandoned  or  captured  property  in  virtue  or  under 
color  of  said  acts  from  suits  at  common  law,  or  any  other  mode  of 
redress  whatever,  before  any  court  other  than  the  said  Court  of 
Claims;  provided^  also,  that  the  jurisdiction  of  the  Court  of 
Claims  shall  not  extend  to  any  claim  against  the  United  States 
growing  out  of  the  destruction  or  appropriation  of  or  damage  to 
property  by  the  army  or  navy  engaged  in  the  suppression  of  the 
rebellion. 

Private  claims  in  Congress,  when  transmitted  to  Court 
OF  Claims. — Sec.  1060.  All  petitions  and  bills  praying  or  provid- 
ing for  the  satisfaction  of  private  claims  against  the  government, 
founded  upon  any  law  of  Congress,  or  upon  any  regulation  of  an 
executive  department,  or  upon  any  contract,  expressed  or  implied, 
with  the  government  of  the  United  States,  shall,  unless  otherwise 
ordered  by  resolution  of  the  house  in  Avhich  they  are  introduced, 
be  transmitted  by  the  Secretary  of  the  Senate  or  the  Clerk  of  the 
House  of  Representatives,  with  all  the  accompanying  documents,  to 
the  Court  of  Claims. 

Judgments  for  set-off  or  counter-claim,  how  enforced. — 
See.  1061.  Upon  the  trial  of  any  cause  in  which  any  set-off,  counter- 
claim, claim  for  damages  or  other  demand  is  set  up  on  the  part  of  the 
government  against  any  person  making  claim  against  the  govern- 
ment in  said  court,  the  court  shall  hear  and  determine  such  claim 
or  demand  both  for  and  against  the  government  and  claimant ;  and 
if  upon  the  whole  case  it  finds  that  the  claimant  is  indebted  to  the 
government,  it  shall  render  judgment  to  that  eifect,  and  such  judg- 
ment shall  be  final,  with  the  right  of  appeal,  as  in  other  cases  pro- 
vided for  by  law.  Any  transcript  of  such  judgment,  filed  in  the 
clerk's  office  of  any  district  or  circuit  court,  shall  be  entered  upon 
the  records  thereof,  and  shall  thereby  become  and  be  a  judgment 
of  such  court,  and  be  enforced  as  other  judgments  in  such  courts  are 
enforced. 

Decree  on  accounts  of  paymasters,  etc. — See.  1060.  Whenever 
the  Court  of  Claims  ascertains  the  facts  of  any  loss  by  any  paymas- 


COURT    OF    CLAIMS.  323 

ter,  quartermaster,  commissary  of  subsistence,  or  other  disbursing  offi- 
cer, in  the  cases  hereinbefore  provided,  to  have  been  without  fault 
or  negligence  on  the  part  of  such  officer,  it  shall  make  a  decree  set- 
ting forth  the  amount  thereof,  and  upon  such  decree  the  proper 
accounting  officers  of  the  treasury  shall  allow  to  such  officer  the 
amount  so  decreed,  as  a  credit  in  the  settlement  of  his  accounts. 

Claims  referred  by  departments. — Sec.  1068.  Whenever 
any  claim  is  made  against  any  executive  department,  involving  dis- 
puted facts  or  controverted  questions  of  law,  where  the  amount  in 
controversy  exceeds  three  thousand  dollars,  or  where  the  decision 
will  affect  a  class  of  cases,  or  furnish  a  precedent  for  the  future 
action  of  any  executive  department  in  the  adjustment  of  a  class  of 
cases,  without  regard  to  the  amount  involved  in  the  particular  case, 
or  where  any  authority,  right,  privilege  or  exemption  is  claimed  or 
denied  under  the  Constitution  of  the  United  States,  the  head  of 
such  department  may  cause  such  claim,  with  all  the  vouchers, 
papers,  proofs  and  documents  pertaining  thereto,  to  be  transmitted 
to  the  Court  of  Claims,  and  the  same  shall  be  there  proceeded  in  as 
if  originally  commenced  by  the  voluntary  action  of  the  claimant ; 
and  the  Secretary  of  the  Treasury  may,  upon  the  certificate  of  any 
auditor  or  comptroller  of  the  Treasury,  direct  any  account,  mat- 
ter or  claim,  of  the  character,  amount  or  class  described  in  this 
section,  to  be  transmitted,  with  all  the  vouchers,  papers,  documents 
and  proofs  pertaining  thereto,  to  the  said  court,  for  trial  and  adju- 
dication ;  provided,  that  no  case  shall  be  referred  by  any  head  of 
a  department  unless  it  belongs  to  one  of  the  several  classes  of  cases 
which,  by  reason  of  the  subject-matter  and  character,  the  said  court 
might,  under  existing  laws,  take  jurisdiction  of  on  such  voluntary 
action  of  the  claimant. 

Procedure  in  cases  transmitted  by  departments. — See. 
1064.  All  cases  transmitted  by  the  head  of  any  department,  or 
upon  the  certificate  of  any  auditor  or  comptroller,  according  to  the 
provisions  of  the  preceding  section,  shall  be  proceeded  in  as  other 
cases  pending  in  the  Court  of  Claims,  and  shall  in  all  respects  be 
subject  to  the  same  rules  and  regulations. 

Judgments  in  cases  transmitted  by  departments,  how  paid. 
— See.  1065.  The  amount  of  any  final  judgment  or  decree  rendered 
in  favor  of  the  claimant,  in  any  case  transmitted  to  the  Court  of 
Claims  under  the  two  preceding  sections,  shall  be  paid  out  of  any 


324  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE, 

specific  appropriation  applicable  to  the  case,  if  any  such  there  be ; 
and  where  no  such  appropriation  exists,  the  judgment  or  decree 
shall  be  paid  in  the  same  manner  as  other  judgments  of  the  said 
court. 

Claims  growing  out  of  treaties  not  cognizable  therein. 
— Sec.  1066.  The  jurisdiction  of  the  said  court  shall  not  extend  to 
any  claim  against  the  government  not  pending  therein  on  December 
one,  eighteen  hundred  and  sixty-two,  growing  out  of  or  dependent 
on  any  treaty  stipulation  entered  into  with  foreign  nations  or  with 
the  Indian  tribes. 

Claims  not  to  be  prosecuted  by  parties  having  suits  in 
other  courts  respecting  same  against  persons  acting  for 
THE  United  States. — Sec.  1067.  No  person  shall  file  or  prosecute 
in  the  Court  of  Claims,  or  in  the  Supreme  Court  on  appeal  there- 
from, any  claim  for  or  in  respect  to  which  he  or  any  assignee  of 
his  has  pending  in  any  other  court  any  suit  or  process  against  any 
person  who,  at  the  time  when  the  cause  of  action  alleged  in  such  suit 
or  process  arose,  was,  in  respect  thereto,  acting  or  professing  to  act, 
mediately  or  immediately,  under  the  authority  of  the  United  States. 

Aliens. — Sec.  1068.  Aliens,  who  are  citizens  or  subjects  of  any 
government  which  accords  to  citizens  of  the  United  States  the  right 
to  prosecute  claims  against  such  government  in  its  courts,  shall 
have  the  privilege  of  prosecuting  claims  against  the  United  States 
in  the  Court  of  Claims,  whereof  such  court,  by  reason  of  their 
subject-matter  and  character,  might  take  jurisdiction. 

Limitation. — Sec.  1069.  Every  claim  against  the  United  States, 
cognizable  by  the  Court  of  Claims,  shall  be  forever  barred  unless 
the  petition  setting  forth  a  statement  thereof  is  filed  in  the  court, 
or  transmitted  to  it  by  the  Secretary  of  the  Senate  or  the  Clerk  of 
the  House  of  Representatives  as  provided  by  law,  within  six  years 
after  the  claim  first  accrues  ;  provided,  that  the  claims  of  married 
women  first  accrued  during  marriage,  of  persons  under  the  age  of 
twenty-one  years  first  accrued  during  minority,  and  of  idiots, 
lunatics,  insane  persons,  and  persons  beyond  the  seas  at  the  time 
the  claim  accrued,  entitled  to  the  claim,  shall  not  be  barred  if  the 
petition  be  filed  in  the  court  or  transmitted,  as  aforesaid,  within 
three  years  after  the  disability  has  ceased  ;  but  no  other  disability 
than  those  enumerated  shall  prevent  any  claim  from  being  barred, 
nor  shall  any  of  the  said  disabilities  operate  cumulatively. 


COURT    OF    CLAIMS.  325 

Rules  of  practice  ;  contempts. — Sec.  1070.  The  said  court 
shall  have  power  to  establish  rules  for  its  government  and  for  the 
regulation  of  practice  therein,  and  it  may  punish  for  contempt  in 
the  manner  prescribed  by  the  common  law,  may  appoint  commis- 
sioners, and  may  exercise  such  powers  as  are  necessary  to  carry 
into  effect  the  powers  granted  to  it  by  law. 

Oaths  and  acknowledgments. — Sec.  1071.  The  judges  and 
clerks  of  said  court  may  administer  oaths  and  aGfirmations,  take 
acknowledgments  of  instruments  in  writing,  and  give  certificates  of 
the  same. 

Petition,  aviiat  to  set  forth. — Sec.  1072.  The  claimant  shall, 
in  all  cases,  fully  set  forth  in  his  petition  the  claim,  the  action 
thereon  in  Congress  or  by  any  of  the  departments,  if  such  action 
has  been  had  ;  what  persons  are  owners  thereof  or  interested  therein, 
when  and  upon  what  consideration  such  persons  became  so  inter- 
ested ;  that  no  assignment  or  transfer  of  said  claim,  or  of  any  part 
thereof  or  interest  therein,  has  been  made,  except  as  stated  in  the 
petition  ;  that  said  claimant  is  justly  entitled  to  the  amount  therein 
claimed  from  the  United  States,  after  allowing  all  just  credits  and 
offsets ;  that  the  claimant,  and,  where  the  claim  has  been  assigned, 
the  original  and  every  prior  owner  thereof,  if  a  citizen,  has  at  all 
times  borne  true  allegiance  to  the  government  of  the  United  States, 
and,  whether  a  citizen  or  not,  has  not  in  any  way  voluntarily  aided, 
abetted,  or  given  encouragement  to  rebellion  against  the  said  gov- 
ernment, and  that  he  believes  the  facts  as  stated  in  the  said  petition 
to  be  true.  And  the  said  petition  shall  be  verified  by  the  affidavit 
of  the  claimant,  his  agent  or  attorney. 

Petition  to  be  dismissed  if  issue  found  against  claimant 
AS  TO  ALLEGIANCE,  ETC. — Sec.  1073.  The  said  allegations  as  to  true 
allegiance  and  voluntary  aiding,  abetting  or  giving  encouragement 
to  rebellion  against  the  government  may  be  traversed  by  the  govern- 
ment, and  if  on  the  trial  such  issues  shall  be  decided  against  the 
claimant,  his  petition  shall  be  dismissed. 

Burden  of  proof  and  evidence  as  to  loyalty. — Sec.  1074. 
Whenever  it  is  material  in  any  claim  to  ascertain  whether  any  per- 
son did  or  did  not  give  any  aid  or  comfort  to  the  late  rebellion,  the 
claimant  asserting  the  loyalty  of  any  such  person  to  the  United 
States  during  such  rebellion  shall  be  required  to  prove  affirmatively 
that  such  person  did,  during  said  rebellion,  consistently  adhere  to 


326  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

the  United  States,  and  did  give  no  aid  or  comfort  to  persons  en- 
gaged in  said  rebellion ;  and  the  voluntary  residence  of  any  such 
person  in  any  place  where,  at  any  time  during  such  residence,  the 
rebel  force  or  organization  held  sway,  shall  he  prima  facie  evidence 
that  such  person  did  give  aid  and  comfort  to  said  rebellion  and  to 
the  persons  engaged  therein. 

Commissioners  to  take  testimony. — Sec.  1075.  The  Court  of 
Claims  shall  have  power  to  appoint  commissioners  to  take  testimony 
to  be  used  in  the  investigation  of  claims  which  come  before  it ;  to 
prescribe  the  fees  which  they  shall  receive  for  their  services,  and  to 
issue  commissions  for  the  taking  of  such  testimony,  whether  taken 
at  the  instance  of  the  claimant  or  of  the  United  States. 

Power  to  call  upon  departments  for  information. — Sec. 
1076.  The  said  court  shall  have  power  to  call  upon  any  of  the 
departments  for  any  information  or  papers  it  may  deem  necessary, 
and  shall  have  the  use  of  all  recorded  and  printed  reports  made  by 
the  committees  of  each  house  of  Congress,  when  deemed  necessary 
in  the  prosecution  of  its  business.  But  the  head  of  any  depart- 
ment may  refuse  and  omit  to  comply  with  any  call  for  information 
or  papers  when,  in  his  opinion,  such  compliance  would  be  injurious 
to  the  public  interest. 

When  testimony  not  to  be  taken. — Sec.  1077.  When  it  ap- 
pears to  the  court  in  any  case  that  the  facts  set  forth  in  the  petition 
of  the  claimant  do  not  furnish  any  ground  for  relief,  it  shall  not  be 
the  duty  of  the  court  to  authorize  the  taking  of  any  testimony 
therein. 

Witnesses  not  excluded  on  account  of  color. — Sec.  1078. 
No  witness  shall  be  excluded  in  any  suit  in  the  Court  of  Claims  on 
account  of  color. 

Parties  and  persons  interested  excluded  as  witnesses. — 
Sec.  1079.  No  claimant,  nor  any  person  from  or  through  whom  any 
such  claimant  derives  his  alleged  title,  claim  or  right  against  the 
United  States,  nor  any  person  interested  in  any  such  title,  claim  or 
right,  shall  be  a  competent  witness  in  the  Court  of  Claims  in  sup- 
porting the  same,  and  no  testimony  given  by  such  claimant  or 
person  shall  be  used  except  as  provided  in  the  next  section. 

Examination  of  claimant. — Sec.  1080.  The  court  may,  at  the 
instance  of  the  attorney  or  solicitor  appearing  in  behalf  of  the 
United  States,  make  an  order  in  any  case  pending  therein,  direct- 


COURT   OF    CLAIMS.  327 

ing  any  claimant  in  such  case  to  appear,  upon  reasonable  notice, 
before  any  commissioner  of  the  court,  and  be  examined  on  oath 
touching  any  or  all  matters  pertaining  to  said  claim.  Such  ex- 
amination shall  be  reduced  to  writing  by  the  said  commissioner,  and 
be  returned  to  and  filed  in  the  court,  and  may,  at  the  discretion  of 
the  attorney  or  solicitor  of  the  United  States  appearing  in  the  case, 
be  read  and  used  as  evidence  on  the  trial  thereof.  And  if  any  claim- 
ant, after  such  order  is  made,  and  due  and  reasonable  notice  thereof 
is  given  to  him,  fails  to  appear,  or  refuses  to  testify  or  answer  fully 
as  to  all  matters  within  his  knowledge  material  to  the  issue,  the 
court  may,  in  its  discretion,  order  that  the  said  cause  shall  not  be 
brought  forward  for  trial  until  he  shall  have  fully  complied  with 
the  order  of  the  court  in  the  premises. 

Testimony  taken  where  deponent  resides. — Sec.  1081.  The 
testimony  in  cases  pending  before  the  Court  of  Claims  shall  be 
taken  in  the  county  where  the  witness  resides,  when  the  same  can 
be  conveniently  done. 

Witnesses,  HOW  compelled  to  attend  before  commissioners. 
— Sec.  1082.  The  Court  of  Claims  may  issue  subpoenas  to  require 
the  attendance  of  witnesses  in  order  to  be  examined  before  any 
person  commissioned  to  take  testimony  therein,  and  such  subpoenas 
shall  have  the  same  force  as  if  issued  from  a  district  court,  and 
compliance  therewith  shall  be  compelled  under  such  rules  and 
orders  as  the  court  shall  establish. 

Cross-examination. — Sec  1083.  In  taking  testimony  to  be 
used  in  support  of  any  claim,  opportunity  shall  be  given  to  the 
United  States  to  file  interrogatories,  or  by  attorney  to  examine  wit- 
nesses, under  such  regulations  as  said  court  shall  prescribe;  and  like 
opportunity  shall  be  afforded  the  claimant,  in  cases  where  testimony 
is  taken  on  behalf  of  the  United  States,  under  like  regulations. 

Witnesses,  how  sworn. — Sec.  1084.  The  commissioner  taking 
testimony  to  be  used  in  the  Court  of  Claims  shall  administer  an 
oath  or  affirmation  to  the  witnesses  brought  before  him  for  exami- 
nation. 

Fees  of  commissioner,  by  whom  paid. — Sec.  1085.  When  testi- 
mony is  taken  for  the  claimant,  the  fees  of  the  commissioner  before 
whom  it  is  taken,  and  the  cost  of  the  commission  and  notice,  shall  be 
paid  by  such  claimant ;  and  when  it  is  taken  at  the  instance  of  the 
government,  such  fees,  together  with  all   postage  incurred   by  the 


328  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

Assistant  Attorney-General,  shall  be  paid  out  of  the  contingent 
fund  provided  for  the  Court  of  Claims,  or  other  appropriation  made 
by  Congress  for  that  purpose. 

Claims  forfeited  for  fraud. — Sec.  1086.  Any  person  who 
corruptly  practices  or  attempts  to  practice  any  fraud  against  the 
United  States  in  the  proof,  statement,  establishment  or  allowance 
of  any  claim  or  any  part  of  any  claim  against  the  United  States, 
shall  ipso  facto  forfeit  the  same  to  the  government ;  and  it  shall  be 
the  duty  of  the  Court  of  Claims,  in  -such  cases,  to  find  specifically 
that  such  fraud  was  practiced  or  attempted  to  be  practiced,  and 
thereupon  to  give  judgment  that  such  claim  is  forfeited  to  the 
government,  and  that  the  claimant  be  forever  barred  from  prose- 
cuting the  same. 

New  trial  on  motion  of  claimant. — Sec.  1087.  When  judg- 
ment is  rendered  against  any  claimant,  the  court  may  grant  a  new 
trial  for  any  reason  which,  by  the  rules  of  common  law  or  chancery 
in  suits  between  individuals,  would  furnish  sufficient  ground  for 
granting  a  new  trial. 

New  trial  on  motion  of  United  States. — Sec.  1088.  The 
Court  of  Claims,  at  any  time  while  any  claim  is  pending  before  it 
or  on  appeal  from  it,  or  within  two  years  next  after  the  final  dispo- 
sition.of  such  claim,  may  on  motion  on  behalf  of  the  United  States 
grant  a  new  trial  and  stay  the  payment  of  any  judgment  therein, 
upon  such  evidence,  cumulative  or  otherwise,  as  shall  satisfy  the 
court  that  any  fraud,  wrong  or  injustice  in  the  premises  has  been 
done  to  the  United  States  ;  but  until  an  order  is  made  staying  the 
payment  of  a  judgment,  the  same  shall  be  payable  and  paid  as  now 
provided  by  law. 

Payment  of  judgments. — Sec.  1089.  In  all  cases  of  final  judg- 
ments by  the  Court  of  Claims,  or  on  appeal  by  the  Supreme  Court 
where  the  same  are  affirmed  in  favor  of  the  claimant,  the  sum  due 
thereby  shall  be  paid  out  of  any  general  appropriation  made  by  law 
for  the  payment  and  satisfaction  of  private  claims,  on  presentation 
to  the  Secretary  of  the  Treasury  of  a  copy  of  said  judgment,  certi- 
fied by  the  clerk  of  the  Court  of  Claims,  and  signed  by  the  Chief 
Justice,  or  in  his  absence  by  the  presiding  judge  of  said  court. 

Interest. — Sec.  1090.  In  cases  where  the  judgment  appealed 
from  is  in  favor  of  the  claimant,  and  the  same  is  affirmed  by  the 
Supreme  Court,  interest  thereon  at  the  rate  of   five  per  centum 


COURT    OF   CLAIMS.  329 

shall  be  allowed  from  the  date  of  its  presentation  to  the  Secretary 
of  the  Treasury  for  payment  as  aforesaid ;  but  no  interest  shall  be 
allowed  subsequent  to  the  affirmance,  unless  presented  for  payment 
to  the  Secretary  of  the  Treasury  as  aforesaid. 

Interest  on  claims. — Sec.  1091.  No  interest  shall  be  allowed  on 
any  claim  up  to  the  time  of  the  rendition  of  judgment  thereon  by 
the  Court  of  Claims,  unless  upon  a  contract  expressly  stipulating 
for  the  payment  of  interest. 

Payment  of  judgment  a  full  discharge,  etc. — Sec.  1092.  The 
payment  of  the  amount  due  by  any  judgment  of  the  Court  of  Claims 
and  of  any  interest  thereon  allowed  by  law,  as  hereinbefore  pro- 
vided, shall  be  a  full  discharge  to  the  United  States  of  all  claim  and 
demand  touching  any  of  the  matters  involved  in  the  controversy. 

Final  judgments  a  bar. — Sec.  1093.  Any  final  judgment 
against  the  claimant  on  any  claim  prosecuted  as  provided  in  this 
chapter  shall  forever  bar  any  further  claim  or  demand  against 
the  United  States  arising  out  of  the  matters  involved  in  the 
controversy. 

Attorney-General  to  transmit  petition  in  certain  cases 
to  departments,  etc. — Sec.  188.  In  all  suits  brought  against  the 
United  States  in  the  Court  of  Claims  founded  upon  any  contract, 
agreement  or  transaction  with  any  department,  or  any  bureau, 
officer  or  agent  of  a  department,  or  where  the  matter  or  thing  on 
which  the  claim  is  based  has  been  passed  upon  and  decided  by  any 
department,  bureau  or  officer  authorized  to  adjust  it,  the  Attorney- 
General  shall  transmit  to  such  department,  bureau  or  officer  a 
printed  copy  of  the  petition  filed  by  the  claimant,  with  a  request 
that  the  department,  bureau  or  officer  shall  furnish  to  the  Attorney- 
General  all  facts,  circumstances  and  evidence  touching  the  claim 
in  the  possession  or  knowledge  of  the  department,  bureau  or  officer. 

Such  department,  bureau  or  officer  shall,  without  delay  and  within 
a  reasonable  time,  furnish  the  Attorney-General  with  a  full  state- 
ment, in  w-riting,  of  all  such  facts,  information  and  proofs. 

The  statement  shall  contain  a  reference  to  or  description  of  all 
such  official  documents  or  papers,  if  any,  as  may  furnish  proof  of 
facts  referred  to  in  it,  or  may  be  necessary  and  proper  for  the 
defence  of  the  United  States  against  the  claim,  mentioning  the 
department,  office  or  place  where  the  same  is  kept  or  may  be  pro- 
cured.    If   the  claim  has  been  passed  upon   and  decided   by  the 


330  FEDtlRAL    PLEADING,    PRACTICE    AND    PUOCEDURE. 

•lepartment,  bureau  or  officer,  the  statement  shall  succinctly  state 
the  reasons  and  principles  upon  which  such  decision  was  based. 
In  all  cases  where  such  decision  was  founded  upon  any  act  of 
Congress,  or  upon  any  section  or  clause  of  such  act,  the  same 
shall  be  cited  specifically ;  and  if  any  previous  interpretation  or 
construction  has  been  given  to  such  act,  section  or  clause  by  the 
department,  bureau  or  officer,  the  same  shall  be  set  forth  suc- 
cinctly in  the  statement,  and  a  copy  of  the  opinion  filed,  if  any, 
shall  be  annexed  to  it.  Where  any  decision  in  the  case  has 
been  based  upon  any  regulation  of  a  department,  or  where  such 
regulation  has,  in  the  opinion  of  the  department,  bureau  or  officer 
transmitting  such  statement,  any  bearing  upon  the  claim  in  suit, 
the  same  shall  be  distinctly  quoted  at  length  in  the  statement. 

But  where  more  than  one  case,  or  a  class  of  cases,  is  pending, 
the  defence  to  which  rests  upon  the  same  facts,  circumstances  and 
proofs,  the  department,  bureau  or  officer  shall  only  be  required  to 
certify  and  transmit  one  statement  of  the  same,  and  such  statement 
shall  be  held  to  apply  to  all  such  cases  as  if  made  out,  certified  and 
transmitted  in  each  case  respectively. 

Appeals  to  SuprExMe  Court. — Sec.  707.  An  appeal  to  the  Su- 
preme Court  shall  be  allowed,  on  behalf  of  the  United  States,  from 
all  judgments  of  the  Court  of  Claims  adverse  to  the  United  States, 
and  on  behalf  of  the  plaintiff  in  any  case  where  the  amount  in  con- 
troversy exceeds  three  thousand  dollars,  or  where  his  claim  is  for- 
feited to  the  United  States  by  the  judgment  of  said  court,  as  pro- 
vided in  section  1086. 

Appeals;  time  and  manner  of  taking. — Sec.  10^.  All  ap- 
peals from  the  Court  of  Claims  shall  be  taken  within  ninety  days 
after  the  judgment  is  rendered,  and  shall  be  allowed  under  such 
regulations  as  the  Supreme  Court  may  direct. 

Assignment  of  claims  against  United  States  before  issue 
OF  "WARRANT  VOID. — Sec.  3477.  All  transfers  and  assignments 
made  of  any  claim  upon  the  United  States,  or  of  any  part  or  share 
thereof,  or  interest  therein,  whether  absolute  or  conditional,  and 
whatever  may  be  the  consideration  therefor,  and  all  powers 
of  attorney,  orders  or  other  authority  for  receiving  payment 
of  any  such  claim,  or  of  any  part  or  share  thereof,  shall  be  abso- 
lutely null  and  void  unless  they  are  freely  made  and  executed  in 
the  presence  of  at  least  two  attesting  witnesses,  after  the  allowance 


COURT    OF    CLAIMS.  331. 

of  such  a  claim,  the  ascertainment  of  the  amount  due,  and  the  issu- 
ing of  a  warrant  for  the  payment  thereof. 

Such  transfers,  assignments  and  powers  of  attorney  must  recite 
the  warrant  for  payment,  and  must  be  acknowledged  by  the  person 
making  them,  before  an  officer  having  authority  to  take  acknowl- 
edgments of  deeds,  and  shall  be  certified  by  the  officer ;  and  it 
must  appear  by  the  certificate  that  the  officer,  at  the  time  of  the 
acknowledgment,  read  and  fully  explained  the  transfer,  assign- 
ment or  warrant  of  attorney  to  the  person  acknowledging  the 
same. 

Contracts  of  Secretaries  of  War,  Navy  axd  Interior  to  be 
IX  writing,  signed,  etc. — Sec.  3744.  It  shall  be  the  duty  of  the 
Secretary  of  War,  of  the  Secretary  of  the  Navy  and  of  the  Secre- 
tary of  the  Interior  to  cause  and  require  every  contract  made  by 
them  severally  on  behalf  of  the  government,  or  by  their  officers 
under  them,  appointed  to  make  such  contracts,  to  be  reduced  to 
writing  and  signed  by  the  contracting  parties  with  their  names  at 
the  end  thereof;  a  copy  of  which  shall  be  filed  by  the  officer  mak- 
ing and  signing  the  contract  in  the  return  office  of  the  Department 
of  the  Interior,  as  soon  after  the  contract  is  made  as  possible,  and 
within  thirty  days,  together  with  all  bids,  offers  and  proposals 
to  him  made  by  persons  to  obtain  the  same,  and  with  a  copy  of 
any  advertisement  he  may  have  published  inviting  bids,  offers  or 
proposals  for  the  same.  All  the  copies  and  papers  in  relation  to 
each  contract  shall  be  attaclied  together  by  a  ribbon  and  seal,  and 
marked  by  numbers  in  regular  order,  according  to  the  number  of 
papers  composing  the  whole  return.     (See  §§  512-515.) 

Three  judges  to  constitute  a  quorum,  etc. — -That  any  three 
judges  of  the  Court  of  Claims  shall  constitute  a  quorum  ;  provided, 
that  the  concurrence  of  three  judges  shall  be  necessary  to  the  de- 
cision of  any  case.^ 

Costs  of  records  in  the  Supreme  Court  and  Court  of 
Claims,  how  to  be  paid  for. — There  shall  be  taxed  against  the 
losing  party  in  each  and  every  cause  pending  in  the  Supreme  Court 
of  the  United  States,  or  in  the  Court  of  Claims  of  the  United 
States,  the  cost  of  printing  the  record  in  such  case,  which  shall  be 
collected,  except  when  the  judgment  is  against  the  United  States, 
by  the  clerks  of  said  courts  respectively,  and  paid  into  the  treasury 

1  Act  of  June  23,  1874,  18  Stat,  at  L.,  ch.  4G8,  252. 


332  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

of  the  United  States  ;  but  this  shall  only  apply  to  records  printed 
after  the  first  of  October  next.^ 

Claims  on  Chinese  indemnity  fund  for  loss,  etc.,  on  bark 
Caldea  referred  to  the  Court  of  Claims. — Any  person  or 
persons,  or  body  corporate,  holding  and  making  any  claim  upon 
the  balance  of  the  fund  usually  designated  and  known  as  "the 
Chinese  indemnity  fund,"  under  the  control  of  the  Department  of 
State  of  the  United  States  and  now  unappropriated,  for  loss  sus- 
tained by  the  plunder  and  destruction,  in  the  year  1854,  of  the 
bark  Caldera,  and  property  on  board  of  said  vessel,  may  at  any 
time  within  twelve  months  after  the  passage  of  this  act  commence 
proceedings  in  the  United  States  Court  of  Claims  against  the 
United  States,  in  the  same  manner  as  other  suits  are  brought,  pur- 
suant to  and  in  virtue  of  the  statutes  of  the  United  States  and  the 
rules  of  said  court ;  and  the  said  Court  of  Claims  shall  have 
full  jurisdiction  to  hear  and  determine  such  claim  or  demand,  ac- 
cording to  the  principles  of  justice  and  international  law. 

Documents  which  may  be  used,  and  proceedings  in  this 
CASE. — At  the  hearing  or  on  the  trial  of  any  suit  so  commenced, 
either  party,  the  plaintiff  or  defendant,  shall  have  the  right  to 
use  before  the  court  any  testimony  or  documents  which  may  be 
relevant  to  and  competent  upon  the  issues  joined  between  the  par- 
ties; and  the  proceedings,  trial,  decision  and  judgment  of  the 
said  court  shall  be  had  in  the  same  manner  as  in  all  other  cases 
before  the  said  Court  of  Claims,  and  have  the  same  effect;  and 
either  party,  plaintiff  or  defendant,  may  appeal  from  the  de- 
cision or  judgment  of  the  said  Court  of  Claims  to  the  Supreme 
Court  of  the  United  States  in  the  same  manner  as  now  provided 
for  in  other  cases;  provided,  Jioivever,  that  if  any  final  judgment 
be  found  in  favor  of  a  claimant  or  plaintiff,  the  same  can  only  be 
paid  and  satisfied  out  of  the  balance  of  said  Chinese  indemnity 
fund;  and  if  said  judgment  shall  be  in  favor  of  the  defendant, 
then  such  claimants  will  be  forever  barred  in  law  and  equity  from 
hereafter  making  any  claim  upon  or  against  said  fund.^ 

Claims  of  New  Mexico  mounted  volunteers  for  loss  of 

HORSES,  etc.,  referred    TO    THE    CoURT    OP    CLAIMS. The  Court 

of   Claims   can   take  jurisdiction   of  and    adjudge    the    claims    of 

1  Act  of  March  3,  1877,  18  Stat,  at  -  Act  of  June  19,  1878,  20  Stat,  at 
L.,  ch.  105,  344.  L.,  fh.  319,  171. 


COURT    OF   CLAIMS.  333 

officers  and  privates  of  the  New  Mexico  Mounted  Volunteers  in 
the  service  of  the  United  States  during  the  war  of  the  rebellion,  on 
account  of  losses  of  horses  and  equipments,  although  the  same  shall 
not  be  presented  within  six  years  from  the  time  they  accrued  ;  pro- 
vided, that  no  such  claim  can  be  considered  unless  the  petition  set- 
ting forth  the  same  be  filed  within  one  year  from  the  passage  of 
this  act.^ 

The  act  of  March  3,  1883,  provides  as  follows : 

"  Sec.  1.  That  whenever  a  claim  or  matter  is  pending  before  any 
committee  of  the  Senate  or  House  of  Representatives,  or  before 
either  house  of  Congress,  which  involves  the  investigation  and  de- 
termination of  facts,  the  committee  or  house  may  cause  the  same, 
with  the  vouchers,  papers,  proofs  and  documents  pertaining  thereto, 
to  be  transmitted  to  the  Court  of  Claims  of  the  United  States,  and 
the  same  shall  there  be  proceeded  in  under  such  rules  as  the  court 
may  adopt.  When  the  facts  shall  have  been  found,  the  court  shall 
not  enter  judgment  thereon,  but  shall  report  the  same  to  the  com- 
mittee or  to  the  house  by  which  the  case  was  transmitted  for  its 
consideration. 

"  Sec.  2.  That  when  a  claim  or  matter  is  pending  in  any  of  the 
executive  departments  which  may  involve  controverted  questions  of 
fact  or  law,  the  head  of  such  department  may  transmit  the  same, 
with  the  vouchers,  papers,  proofs  and  documents  pertaining  thereto, 
to  said  court,  and  the  same  shall  be  there  proceeded  in  under  such 
rules  as  the  court  may  adopt.  When  the  facts  and  conclusions  of 
laAV  shall  have  been  found,  the  court  shall  not  enter  judgment  thereon, 
but  shall  report  its  findings  and  opinions  to  the  department  by  which 
it  was  transmitted,  for  its  guidance  and  action. 

"  Sec.  3.  The  jurisdiction  of  said  court  shall  not  extend  to  or 
include  any  claim  against  the  United  States  growing  out  of  the 
destruction  or  damage  to  property  by  the  army  or  navy  during  the 
war  for  the  suppression  of  the  rebellion,  or  for  the  use  and  occupa- 
tion of  real  estate  by  any  part  of  the  military  or  naval  forces  of  the 
United  States  in  the  operations  of  said  forces  during  the  said  war 
at  the  seat  of  war  ;  nor  shall  the  said  court  have  jurisdiction  of  any 
claim  against  the  United  States  which  is  now  barred  by  virtue  of 
the  provisions  of  any  law  of  the  United  States. 

"  Sec.  4.  In  any  case  of  a  claim  for  supplies  or  stores  taken  by  or 

'  Act  of  March  1,  1879,  20  Stat,  at  L.,  ch.  115,  324. 


334  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

furnished  to  any  part  of  the  military  or  naval  forces  of  the  United 
States  for  their  use  during  the  late  war  for  the  suppression  of  the 
rebellion,  the  petition  shall  aver  that  the  person  who  furnished  such 
supplies  or  stores,  or  from  whom  such  supplies  or  stores  were  taken, 
did  not  give  any  aid  or  comfort  to  said  rebellion,  but  was  through- 
out that  war  loyal  to  the  government  of  the  United  States,  and  the 
fact  of  such  loyalty  shall  be  a  jurisdictional  fact;  and  unless  the 
said  court  shall,  on  a  preliminary  inquiry,  find  that  the  person  who 
furnished  such  supplies  or  stores,  or  from  whom  the  same  were 
taken  as  aforesaid,  was  loyal  to  the  government  of  the  United 
States  throughout  said  war,  the  court  shall  not  have  jurisdiction 
of  such  cause,  and  the  same  shall,  without  further  proceedings,  be 
dismissed. 

^^  Sec.  5.  That  the  Attorney-General,  or  his  assistants  under  his 
direction,  shall  appear  for  the  defence  and  protection  of  the  interests 
of  the  United  States  in  all  cases  which  may  be  transmitted  to  the 
Court  of  Claims  under  this  act,  with  the  same  power  to  interpose 
counter-claims,  offsets,  defences  for  fraud  practiced  or  attempted  to 
be  practiced  by  claimants,  and  other  defences,  in  like  manner  as  he 
is  now  required  to  defend  the  United  States  in  said  court. 

"  Sec.  6.  That  in  the  trial  of  such  cases  no  person  shall  be  ex- 
cluded as  a  witness  because  he  or  she  is  a  party  to  or  interested  in 
the  same. 

"  Sec.  7.  That  reports  of  the  Court  of  Claims  to  Congress  under 
this  act,  if  not  finally  acted  upon  during  the  session  at  which  they 
are  reported,  shall  be  continued  from  session  to  session  and  from 
Congress  to  Congress  until  the  same  shall  be  finally  acted  upon." 

It  will  be  seen  that  departmental  officers  may,  under  this  act, 
rid  themselves  of  all  controversies  of  laAv  or  fact  in  any  matter 
which  comes  before  them  by  having  the  secretary  refer  the  same  to 
the  Court  of  Claims,  where  it  will  be  judicially  investigated  and 
determined.  After  receiving  a  report  from  the  court,  the  depart- 
ment will  have  no  responsibility  but  to  be  guided  by  the  decision 
thus  obtained  and  to  act  thereon.^ 

^  In  the  article  referred  to  in  a  pre-  partment,  or  upon  any  contract  ex- 

vious    note,    Judge    Richardson    ob-  press   or   implied   with    the   govern- 

serves:    "The   organic   act   of   1855  ment  of  the  United    States,  and  all 

gave  to  the  court  jurisdiction  to  hear  claims  which   may  be  referred  to  it 

and  determine   '  all   claims    founded  by  either  house  of  Congress.' 

upon  any  law  of  Congress,  or  upon  "  That  jurisdiction  continues  to  the 

any  regulation  of  an   executive  de-  present  time,  except  as  it  is  affected 


COURT    OF   CLAIMS. 


335 


§  401.    Jurisdiction    limited  ;    no  jurisdiction   in   case  of  torts. — 
It  will  be  observed  that  the  jurisdiction  of  the  Court  of  Claims  is 


by  a  statute  of  limitations  inserted  in 
the  act  of  March  3,  1863,  by  which  it 
was  provided  that '  every  claim  ajjainst 
the  United  States,  cognizable  by  the 
Court  of  Claims,  shall  be  forever 
barred  unless  the  petition  settinii  forth 
a  statement  of  the  claim  be  filed  in  the 
court  or  transmitted  to  it  under  the 
provisions  of  this  act  within  six  years 
after  the  claim  first  accrues ;'  saving 
the  right  upon  claims  then  already 
accrued  to  tile  the  petition  within 
three  years  after  the  passage  of  the 
act,  and  also  the  rights  of  certain  per- 
sons under  disability. 

"  The  consequence  of  this  limita- 
tion is  that  claimants  now  go  to  Con- 
gress with  their  petitions  for  redress 
in  matters  of  claims  to  which  this  ex- 
clusion from  the  Court  of  Claims  ap- 
plies, and  in  some  special  cases  Con- 
gress has  waived  the  statute  in  their 
behalf. 

"  The  same  act  of  1863  gave  to 
the  court  jurisdiction  of  'all  set-offs, 
counter-claims,  claims  for  damages, 
whether  liquidated  or  unliquidated, 
or  other  demands  whatever  on  the 
part  of  the  government  against  any 
person  making  claims  against  the 
government  in  said  court.'  Under 
this  provision  the  United  States  have 
obtained  judgment  against  individ- 
uals in  several  cases,  and  in  certain 
railroad  cases  they  have  recovered 
more  than  a  million  of  dollars. 

"  By  the  act  of  May  9,  1866,  the 
jurisdiction  was  extended  '  to  hear 
and  determine  the  claim  of  any  pay- 
master, quartermaster,  commissary 
of  subsistence  or  other  disbursing 
officer  of  the  United  States,  or  of  his 
administrators  or  executors,  for  re- 
lief from  responsibility  on  account  of 
losses  by  capture  or  otherwise,  while 
in  the  line  of  his  duty,  of  government 
funds,  vouchers,  records  and  papers 
in  his  charge,  and  for  which  such  ofii- 
cerwas  and  is  held  responsible;'  with 
authority  to  enter  a  decree  for  his  re- 
lief, to  be  certified  to  and  allowed  by 
the  accounting  officers  of  the  treasury 
.as  a  credit  whenever  the  court  '  ascer- 
tained the  facts  of  any  such  loss  to 


have  been  without  fault  or  neglect  on 
the  part  of  any  such  officer.' 

"  The  jurisdiction  of  the  court  was 
further  extended  by  the  act  of  June 
25,  1868,  so  as  to  authorize  the  head 
of  any  executive  department,  or  the 
Secretary  of  the  Treasury,  on  the  cer- 
tificate of  any  auditor  or  comptroller, 
to  transmit  to  the  court  for  hearing 
and  adjudication  any  claim  belonging 
to  one  of  the  classes  of  which  the  court 
might  take  jurisdiction,  on  the  volun- 
tary action  of  the  claimant, '  whenever 
the  same  involves  disputed  facts  or 
controverted  questions  of  law,  where 
the  amount  in  controversy  exceeds 
three  thousand  dollars,  or  where  the 
decision  will  affect  a  class  of  cases,  or 
furnish  a  precedent  for  the  future  ac- 
tion of  any  executive  department  in 
the  adjustment  of  a  class  of  cases, 
without  regard  to  the  amount  in  con- 
troversy in  the  particular  case ;  or 
where  any  authority,  right,  privilege 
or  exemption  is  claimed  or  denied 
under  the  Constitution  of  the  United 
States.'  It  has  been  decided  by  the 
Supreme  Court  that  the  six  years' 
limitation  imposed  by  the  statute  in 
other  cases  does  not  apply  in  this 
court  to  cases  thus  referred,  where 
the  claimant  had  presented  his  claim 
to  the  department  within  six  years 
after  it  had  accrued. 

"  Aliens  who  are  citizens  or  sub- 
jects of  any  government  which  ac- 
cords to  citizens  of  the  United  States 
the  right  to  prosecute  claims  against 
such  government  in  its  courts  have 
the  privilege  of  prosecuting  claims 
against  the  United  States  in  the  Court 
of  Claims,  whereof  the  court,  by  rea- 
son of  their  subject-matter  and  char- 
acter, might  take  jurisdiction.  It  has 
been  judicially  determined  by  decis- 
ions already  made  that  under  this 
provision  the  right  to  sue  in  this  court 
is  accorded  to  citizens  of  Prussia, 
Hanover,  Bavaria,  Switzerland,  the 
Netherlands,  the  Hanseatic  Provinces, 
the  free  city  of  Hamburg,  Spain,  Bel- 
gium, Italy  and  Great  Britain,  and  it 
no  doubt  belongs  to  the  citizens  of 
other  countries. 


336 


FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 


limited  to  certain  matters.    Beyond  these  it  cannot  take  cognizance 
of  cases.     It  has  no  jurisdiction  of  suits  founded  upon  torts.  Thus, 


"The  jurisdiction  of  the  court  is 
restricted  as  to  certain  claims  for  or 
in  respect  to  which  the  claimants  have 
pending  in  other  court:^  suits  against 
persons  who  at  the  time  the  causes  of 
action  occurred  were  acting,  or  pro- 
fessing to  act,  under  the  authority  of 
the  United  States,  and  certain  claims 
growing  out  of  treaties. 

"  These  provisions  confer  the  gen- 
eral, continuing  and  permanent  juris- 
diction of  the  court.  They  may  be 
found,  with  their  incidental  regula- 
tions and  details,  in  chapter  21  of  the 
Kevised  Statutes  of  the  United  States. 
But  Congress  has,  from  time  to  time, 
given  to  the  court  jurisdiction,  for  a 
limited  period,  in  particular  classes 
of  cases,  and  has,  by  special  acts, 
transmitted  many  single  claims  to  the 
court  for  adjudication. 

"  By  the  act  of  March  12,  1863,  en- 
titled '  An  act  to  provide  for  the  col- 
lection of  abandoned  and  captured 
property,  and  for  the  prevention  of 
frauds  in  insurrectionary  districts 
within  the  United  States,'  the  Secre- 
tary of  the  Treasury  was  authorized 
to  appoint  agents  to  receive  and  col- 
lect all  abandoned  or  captured  prop- 
erty in  any  state  or  territory,  or  any 
portion  of  any  state  or  territory,  of 
the  United  States  designated  as  in- 
surrectionary against  the  lawful  gov- 
ernment of  the  United  States  by  proc- 
lamation of  the  President  of  July  1, 
is62.  The  property  collected  was  re- 
•"[uired  to  be  appi'opriated  to  public 
use,  or  sold  and  the  proceeds  paid 
into  the  treasury  of  the  United  States. 

"  The  third  section  of  the  act  pro- 
vided that  '  any  person  claiming  to 
have  been  the  owner  of  any  such 
abandoned  or  captured  property  may, 
at  any  time  within  two  years  after  the 
suppression  of  the  rebellion,  prefer 
his  claim  to  the  proceeds  thereof  in 
the  Court  of  Claims,  and  on  proof  to 
the  satisfaction  of  said  court  of  his 
ownership  of  said  property,  of  his 
right  to  the  proceeds  thereof,  and  that 
he  has  never  given  aid  or  comfort  to 
the  present  rebellion,  to  receive  the 
residue  of  such  proceeds,  after  the  de- 


duction of  any  purchase-money  which 
may  have  been  paid,  together  with  the 
expense  of  transportation  and  sale  of 
said  property,  and  any  other  lawful 
expenses  attending  the  disposition 
thereof.' 

"  It  was  decided  by  the  Supreme 
Court  that,  in  accordance  with  the 
President's  proclamation,  the  sup- 
pression of  the  rebellion  must  be  rec- 
ognized as  having  taken  effect  on  the 
2d  of  April,  1866,  in  the  states  of  Vir- 
ginia, North  Carolina,  South  Carolina, 
Georgia,  Florida,  Mississippi,  Tennes- 
see, Alabama,  Louisiana  and  Arkan- 
sas, and  on  the  20th  of  August,  1866, 
'  throughout  the  whole  of  the  United 
States.'  The  right  to  file  petitions 
under  this  act  therefore  expired  on 
the  20th  of  August,  1868. 

"  The  Supreme  Court  decided,  in 
1871,  that  the  President's  proclama- 
tion of  December  25,  1868,  granting 
'  unconditionally  and  without  reserva- 
tion to  all  and  every  person  who  di- 
rectly or  indirectly  participated  in  the 
late  insurrection  or  rebellion  a  full 
pardon  and  amnesty  for  the  offence 
of  treason  against  the  Unitpd  States, 
etc.,  with  restoration  of  all  rights, 
privileges  and  immunities  under  the 
Constitution  and  laws  which  have 
been  made  in  pursuance  thereof,'  en- 
abled claimants  under  this  act  to  re- 
cover in  the  Court  of  Claims  without 
proof  that  they  never  gave  aid  or 
comfort  to  the  rebellion.  This  de- 
cision having  been  made  after  the 
time  for  bringing  actions  allowed  by 
the  act,  it  came  too  late  for  those  who 
had  previously  been  deterred  from 
presenting  their  petitions  by  reason 
of  their  participation  in  the  rebellion. 

"  Under  this  act  the  court  has  dis- 
posed of  claims  amounting  to  more 
than  thirty  million  dollars,  according 
to  the  petitions.  But  the  judgments 
recovered  have  not  probably  exceeded 
a  third  part  of  the  amount  claimed  ; 
and  the  fund  arising  from  the  cap- 
tured and  abandoned  property,  which 
was  covered  into  the  treasury  by 
special  direction  of  Congress,  is  not 
exhausted  and  cannot  be  much  affect- 


COURT    OF    CLAIMS. 


337 


it  cannot  take  cognizance  of  a  cause  based  upon  the  wrongful  act 
of  an  officer  of  the  United  States,  as  for  a  claim  arising  from  false 


I'd  by  the  few  cases  which  remain  un- 
disposed of. 

"By  the  act  of  June  16,  1880,  Con- 
gress gave  to  this  court  jurisdiction  of 
certain  claims  against  the  District  of 
Columbia,  limiting  parties  to  six 
months  from  the  passage  of  the  act 
in  which  to  file  their  petitions.  Under 
this  authority  342  cases  have  been  in- 
stituted, most  of  which  the  claimants 
have  not  yet  brought  to  trial. 

"In  1873,  by  special  act.  Congress 
granted  jurisdiction  to  the  Court  of 
Claims  to  hear  and  determine  the  case 
of  the  city  of  Carondelet,  brought  to 
recover  against  the  United  States  the 
value  of  a  tract  of  land  of  about 
]  700  acres,  formerly  a  military  reserva- 
tion, and  near  which  had  grown  up 
the  settlement,  village  and  city  of 
Carondelet,  subsequently  merged  into 
the  city  of  Saint  Louis.  The  court 
held  that  the  title  was  in  the  United 
States,  and  its  decision  was  affirmed 
by  the  Supreme  Court  on  appeal. 

"  Several  cases  have  been  referred 
to  the  court  by  Congress,  in  which  the 
owners  of  vessels  claimed  damages  on 
account  of  collisions  with  vessels  of 
the  navy  of  the  United  States,  occur- 
ring, as  alleged,  by  reason  of  the  fault 
and  negligence  of  the  naval  officers 
in  command  of  the  latter. 

"In  1873,  and  previously,  there 
arose  a  controversy  between  the  United 
States  and  the  Pacific  Railroad  com- 
panies as  to  the  right  of  the  former 
to  withhold  payment  for  freight  and 
transportation  for  the  government 
until  those  companies  had  reimbursed 
the  United  States  for  interest  paid  on 
the  bonds  issued  for  the  aid  and  bene- 
tit  of  the  companies,  which  were 
made  payable  in  thirty  years  ;  the 
companies  claiming  that  the  interest 
paid  by  the  United  States  was  not  to 
be  reimbursed  until  the  maturity  of  the 
bonds.  There  were  some  other  ques- 
tions also  involved. 

"A  section  in  the  appropriation  act 
of  March  3,  1873,  provided  that  the 
Secretary  of  the  Treasury  should  with- 
hold all  payments  to  said  companies, 
but  giving  the  companies  the  right  to 
22 


bring  suit  in  theCourtof  Claims  there- 
for. Actions  were  brought  and  were 
prosecuted  and  defended  with  great 
abilitj'^  ;  the  Attorney-General  him- 
self appearing  forthe  government,  and 
Mr.  Sidney  Bartlett,  of  Boston,  and  Mr. 
E.  W.  Stoughton,  of  New  York,  for 
the  claimants.  In  the  first  or  leading 
case,  judgment  was  rendered  for  the 
claimants,  and  on  appeal  to  the  Su- 
preme Court,  the  rulings  of  the  Court 
of  Claims  were  affirmed.  In  a  subse- 
quent case  some  changes  were  made 
by  the  Supreme  Court  in  the  method 
of  computing  the  amount  allowed. 
Judgments  were  finally  recovered  in 
the  different  cases,  amounting  in  the 
aggregate  to  nearly  two  million  dol- 
lars. The  amount,  however,  was  not 
the  most  material  part  of  the  contro- 
versy, the  real  question  being  wheth- 
er or  not  the  defendants  had  a  right 
to  retain  the  amount  as  a  set-off  to  the 
interest  paid. 

"So  in  1874  and  1875  Congress  pro- 
hibited the  payment  of  any  money 
from  the  public  treasury  for  the  trans- 
portation of  any  property  or  troops  of 
the  United  States,  or  any  officers  of 
the  army  travelling  under  military  or- 
ders, over  any  railroad  which,  in  whole 
or  in  part,  was  constructed  by  the  aid 
of  a  grant  of  public  land  on  condition 
that  such  i-ailroad  should  be  a  public 
highway  for  the  use  of  the  governme'nt 
free  of  toll  or  other  charge,  or  upon 
any  other  conditions  for  the  use  of 
such  road  for  such  transportation,  re-, 
serving  the  right  to  the  companies  to 
bring  suit  in  the  Court  of  Claims,  and 
recovering  for  the  same  if  found  enti- 
tled thereto  by  virtue  of  the  laws  in 
force  prior  to  the  passage  of  the  act 
of  prohibition,  and  waiving  the  Stat- 
ute of  Limitation.  In  pursuance  of 
this  provision  suits  were  brought,  and 
the  rights  of  the  United  States  and  of 
the  railroad  companies  under  the  land- 
grant  acts  were  adjudicated  and  set- 
tled, and  Congress  was  relieved  from 
further  trouble  in  the  matter. 

"  For  many  years  there  was  pending 
in  Congress  a  claim  of  the  trustees 
of  Albert  G.  Sloo   for  carrying    the 


338  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

imprisonment  by  one  of  its  officers,  or  for  damages  sustained  by  the 


mail  between  New  York  and  Cliatrrea 
and  New  Orleans  and  Ohaj^res,  in  ad- 
dition to  the  regular  service  required 
under  a  contract  made  in  1S47.  '  Ap- 
plication was  persistently  made,'  say 
the  Supreme  Court,  '  to  Cono:ress  for 
an  equitable  allowance,  but  for  some 
reason  or  other  the  subject  was  always 
postponed  or  delayed,  until  finally,  on 
the  i4th  of  July,  1870,  Congress  pass- 
ed an  act  "referrino;  the  case  to  the 
Court  of  Claims.'  The  case  involved 
the  rights  of  the  parties  and  the  lia- 
bilities of  the  government,  growing 
out  of  correspondence  with  the  Post- 
master-General at  the  time  the  service 
was  performed,  and  the  amount  in 
controversy  was  more  than  a  million 
dollars.  The  case  was  tried  before 
four  judges  of  the  Court  of  Claims, 
and  they  were  equally  divided  upon 
the  question  of  the  liability  of  the 
United  States.  A  pro  forma  judg- 
ment was  entered  for  the  defendants, 
and  the  case  was  taken  to  the  Supreme 
Court  on  appeal.  A  majority  of  that 
court  held  the  United  States  liable, 
and  a  mandate  was  issued  accordingly 
and  judgment  entered  thereon  for  the 
claimants,  for  $1,031,000,  three  judges 
of  the  Supreme  Court  dissenting. 

"By  the  act  of  June  19,  1878,  Con- 
gress authorized  any  pei'sons  or  body 
corporate,  holding  or  making  any 
claim  upon  the  balance  of  the  fund 
usually  designated  and  known  as  '  the 
Chinese  indemnity  fund,'  under  the 
control  of  the  Department  of  State  of 
the  United  States,  for  loss  sustained 
by  the  plunder  and  destruction,  in  the 
year  1854,  of  the  bark  Caldera,  and 
property  on  board  of  said  vessel,  at 
any  time  within  twelve  months  after 
the  passage  of  the  act  to  commence 
proceedings  in  the  Court  of  Claims, 
and  conferred  jurisdiction  on  the 
court  to  hear  and  determine  such 
claims  '  according  to  principles  of  jus- 
tice and  international  law.'  Suits 
were  brought  and  thoroughly  and  ex- 
haustively tried  by  able  counsel.  The 
Court  of  Claims  gave  judgment  for  the 
claimants,  two  of  the  five  judges  dis- 
senting. On  appeal,  the  judges  of  the 
Supreme  Court  were  equally  divided 


in  opinion,  and  the  judgment  was  af- 
firmed for  that  reason. 

"  In  this  connection  it  may  be  men- 
tioned that  another  case  of  an  earlier 
date.  La  Peyre  v.  The  United  States, 
even  more  singularly  divided  the  two 
courts.  The  question  involved  was 
the  novel  one,  whether  a  proclama- 
tion of  the  executive  takes  efl'ect  from 
the  day  of  its  date  or  from  the  time 
of  its  promulgation.  In  the  Court  of 
Claims  the  point  was  argued  before 
four  judges,  a  reargument  was  or- 
dered, and  the  court  then  stood  equally 
divided,  judgment  pro  forma  being 
given  against  the  claimant.  In  the 
Supreme  Court  the  point  was  again 
argued,  a  reargument  was  likewise 
ordered,  and  the  court  then  stood  five 
for  reversal  and  four  for  affirmance, 
with  one  of  the  majority  merely  con- 
curring in  the  judgment. 

"On  the  3d  of  March,  1881,  Con- 
gress passed  an  act  which  authorized 
the  Court  of  Claims  to  take  jurisdic- 
tion of  and  try  all  questions  of  diifer- 
ence  arising  out  of  treaty  stipulations 
with  the  Choctaw  Nation  and  to  ren- 
der judgment  thereon,  with  power  to 
review  the  entire  question  of  differ- 
ences de  710V0,  without  being  estopped 
by  any  action  had  or  award  made  by 
the  Senate  of  the  United  States,  in 
pursuance  of  the  treaty  of  1855. 
These  '  questions  of  difference'  grew 
out  of  treaties  made  in  1820,  1825, 
1830,  1855  and  1856,  They  had  been 
in  controversy  in  Congress  and  the 
departments  for  many  years,  and  in- 
volved a  claim  of  more  than  fifteen 
millions  of  dollars.  Suit  has  been  in- 
stituted, and  although  the  evidence  is 
not  yet  all  put  in,  the  printed  record 
of  the  case  already  covers  more  than 
thirteen  hundred  pages,  and  will  prob- 
ably be  extended  to  two  thousand 
pages  or  more. 

"  Numerous  other  important  cases, 
specially  referred  to  the  court,  might 
be  cited,  but  a  sufficient  number  have 
been  mentioned  to  convey  a  correct 
idea  of  its  jurisdiction,  and  to  show 
the  magnitude  and  intricacies  of  its 
business,  as  well  as  the  relief  which 
is  afforded  to  Congress  by  removing 


COURT    OF   CLAIMS.  339 

bombardment  of  a  town ;  ^  or  for  the  wrongful  and  forcible  posses- 
sion of  land  taken  by  the  United  States  ;^  or  for  damages  arising 
from  a  collision  with  a  vessel  of  the  United  States.^  But  under  the 
peculiar  circumstances  of  the  case,  where  the  government  in  an 
emergency  took  private  property  for  public  use,  it  was  held,  there 
was  an  implied  promise  to  compensate  the  owner  therefor,  and  that 
the  Court  of  Claims  had  jurisdiction  of  a  claim  based  thereon.* 

§  402.  No  jurisdiction  in  equity  cases. — No  provision  is  made  by 
the  section  under  consideration  for  the  exercise  of  any  equitable 
jurisdiction  by  the  Court  of  Claims,  and  hence  it  cannot  take 
cognizance  of  causes  involving  an  investigation  of  equitable  rights 
set  up  by  claimants  against  the  United  States.^  In  Bonner  v. 
United  States,  cited  in  the  last  note,  Mr.  Justice  Davis  observes  : 
"  Congress  did  not  think  proper  to  part  with  the  consideration  of 
such  questions,  but  wisely  reserved  to  itself  the  power  to  dispose  of 
them.  Immunity  from  suit  is  an  incident  of  sovereignty ;  but  the 
government  of  the  United  States  in  a  spirit  of  great  liberality 
w'aived  that  immunity  in  favor  of  those  persons  who  had  claims 
against  it  which  were  founded  upon  any  law  of  Congress  or  regula- 
tion of  an  executive  department,  or  upon  any  contract  with  it,  ex- 
press or  implied,  and  gave  the  Court  of  Claims  the  power  to  hear 
and  determine  claims  of  this  nature." 

§  403.  Its  jurisdiction  of  claims  arising  under  the  revenue  la^wrs. 
— No  provision  is  made  by  the  section  of  the  statute  conferring 
jurisdiction  on  the  Court  of  Claims  to  take  cognizance  of  claims 
arising  under  the  revenue  laws.  If  there  is  a  claim  growing  out  of 
the  administration  of  these  laws,  the  statute  points  out  the  remedy, 
which  must  be  pursued  by  those  aggrieved  thereby.    But  the  Court 

such  controversies  from   the  halls  of  also  Titson  v.  United  States,  10  U.  S. 

legislation."  43:   Harvey's  Case,   13  Ct.  CI.    322. 

^  Gibbons  v.  United  States,  8  Wall.  Nor  has  tliis  court  jurisdiction  of  a 
2G9 ;  s.  c,  2  Ct.  CI.  421  ;  Spicer  v.  case  against  the  government  to  re- 
United  States,  1  Ct.  CI.  316;  Perrin  cover  a  military  land  warrant:  United 
V.  United  States,  12  Wall.  315.  States  v.  Alire.  6  Wall,  573.     Nor  of 

^  Langford   v.    United    States,    101  a  case  for  merely  nominal  damages 

U.  S.  341.  arising    for   a    breach    of    contract: 

'  Dennis  v.  United  States,  2  Ct.  CI,  Grant  v.  United  States,  7  Wall.  331. 

210.     See  also  United  States  u.  Bost-  The  only  judgment  vrhich  the  Court 

wick,  94  U.  S.  53  ;  s,  c,  12  Ct.  CI.  67.  of  Claims  can  render  is  one  for  money 

*  United  States  v.  Russell,  13  Wall,  found  due  to  the  petitioner  from  the 

623.  government:    United  States  «;.  Alire, 

»  Bonner  v.  United  States,  9  Wall.  6  Wall.  573  ;  s.  c,  1  Ct.  CI.  233. 
156 :  s,  c,  1   Ct.  CI.   125.      But  see 


340  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

of  Claims  has  no  jurisdiction  of  such  cases. ^  The  government  has 
entrusted  the  determination  of  such  matters  to  certain  specified 
oflficers,  and  a  final  hearing  therein  to  other  tribunals.^ 

Thus,  where  a  manufacturer  has  paid  the  tax  required  by  the 
internal  revenue  laws  on  the  goods  manufactured,  which  laws  pro- 
vide for  a  drawback  in  case  of  the  exportation  of  the  goods,  the 
manufacturer  cannot  prosecute  an  action  therefor  in  the  Court  of 
Claims,  as  another  remedy  is  provided  by  said  laws.^  So  an  im- 
porter cannot  maintain  an  action  in  said  court  to  recover  a  duty 
upon  imported  goods,  although  the  duty  was  illegal.*  Nor  can  a 
distiller  prosecute  an  action  therein  to  recover  a  claim  on  account 
of  leakage.® 

But  this  court  may  take  cognizance  of  claims  growing  out  of  the 
administration  of  the  internal  revenue  laws,  where  they  are  based 
upon  a  law  of  Congress,  or  upon  any  regulation  of  the  executive 
department,  or  upon  a  contract,  express  or  implied,  with  the  gov- 
ernment of  the  United  States,  and  especially  where  there  is  no  re- 
dress elsewhere.'' 

Thus,  the  Court  of  Claims  may  entertain  a  petition  by  an  assessor 
of  internal  revenue  to  recover  money  deposited  with  a  collector  to 
secure  a  compromise  of  a  prosecution  against  the  former,  if  the 
compromise  fails  and  the  money  is  covered  into  the  treasury  of  the 
United  States.'^  So  it  has  jurisdiction  of  a  claim  of  an  informer 
to  recover  his  share  of  a  forfeiture  under  the  revenue  laws;^  and 
especially  if  the  money  arising  from  the  forfeiture  has  been  covered 
into  the  treasury  of  the  United  States.^  So  a  manufacturer  of  arti- 
cles required  to  be  stamped  under  the  revenue  laws  may  recover  in 
this  court  commission  on  stamps  allowed  by  said  laws."'  And  an 
importer  may  recover  money  deposited  by  him  with  a  collector  of 

1  Nichols  V.  United  States,  7  Wall.  CI.    117;    Doherty  v.  United  States, 

122.  6  Ct.  CI.  90. 

'^  Broughton  v.    United    States,    12  ^  Turner  v.  United  States,  9  Ct.  CI. 

Ct.  CI.  3^0.     If  there  is  discretionary  307. 

power  given  to  an  officer  to  remit  pen-  ®  Brown  v.  United  States,  6  Ct.  CI. 

alties  under    the   revenue  laws,  the  171. 

Court  of  Claims  can  have  no  juris-  '  Broughton  d.  United  States,  12  Ct. 

diction  of  a  claim  against  the  govern-  CI.  33(». 

ment  based  thereon  :    Dorsheimer  v.  *  Shelton  v.  United  States,  8  Ct.  CI. 

United  States,  7  Wall.  167.  487. 

•^  Portland  Co.  v.   United  States,  5  »  Bradley  v.  United   States,  12  Ct. 

Ct.  CI.  441.  CI.  57S. 

*  Nichols  «.  United  States,  7  Wall.  i°  Dailey  v.  United  States,  7  Ct.  CI. 

122  :  De  Cells  v.  United  States,  13  Ct.  383. 


COURT    OF    CLAIMS.  341 

duties  in  excess  of  the  duties  on  goods  received  by  him.^  But  if 
the  amount  of  claim  for  a  drawback  is  required  by  the  revenue 
laws  to  be  ascertained  by  a  specified  officer,  and  this  has  not  been 
done,  or  if  the  claim  is  for  a  share  of  a  forfeiture  under  said  laws, 
and  on  a  proper  submission  the  Secretary  of  the  Treasury  has 
decided  against  it,  the  Court  of  Claims  will  not  take  cognizance 
of  the  same.^ 

§  404.  Claims  founded  upon  any  law  of  Congress  or  any  regulation 
of  an  executive  department. — The  Statute  provides  for  the  jurisdic- 
tion of  the  Court  of  Claims  where  the  claim  is  founded  upon  any 
act  of  Congress.  If  such  a  claim  should  be  rejected  by  an  execu- 
tive department,  it  could  still  be  prosecuted  in  this  court.^  Thus, 
an  officer  of  the  government  may  prosecute  a  claim  in  this  court 
for  a  salary  allowed  him  by  an  act  of  Congress.^  So  where,  by  a 
law  of  Congress,  the  United  States  had  assumed  the  payment  of 
certain  bonds  of  the  state  of  Texas,  it  was  held  that  an  action 
thereon  could  be  maintained  by  the  payee  in  this  court,  although 
they  had  been  lost  or  stolen  and  without  endorsement  had  been 
paid  to  the  holder.^ 

A  "regulation  of  an  executive  department"  may,  under  the 
statute  of  the  United  States  conferring  that  power,  have  the  force 
and  effect  of  law;  and  it  is  such  a  regulation  that  is  meant  by  the 
language  of  the  statute.  It  relates  to  regulations  on  which  the 
department  has  a  right  to  act,  and  made  by  such  department.^ 

§  405.  Jurisdiction  in  case  of  claim  upon  contract. — Ihe  COUrt 
has  jurisdiction  of  all  claims  founded  upon  express  or  implied  con- 
tracts with  the  government.  Few  controversies  have  arisen  under 
this  ground  of  jurisdiction  where  the  contract  was  express,  but 
many  cases  have  occurred  in  relation  to  implied  contracts.  In 
a  case  of  a  lease  of  property  by  the  United  States,  where  the 
lessor  claimed  dama<?es  for  the  negligent  use  or  want  of  reasonable 
care  in  the  use  of  the  property  by  the  United  States,  it  was  held 

^  Broulatour  v.  United  States,  7  Ct.  ^  Morrell  v.  United  States,  7  Ct.  CI. 

CI  555.  421. 

^  Ramsey  v.  United  States,  14  Ct.  '  Harvey  v.  United  States,  3  Ct.  CI. 

CI.  367  ;  Campbell  v.  United  States,  38.     But  an  order  assigning  duties  to 

12  Ct.  CI.  470.  a  clerk  in  a  department  was  held  not 

*  Alire  v.  United  States,  1  Ct.  CI.  to  be  a  "  regulation  of  an  executive 
233;  Bogert  v.  United  States,  3  Ct.  department:"  Harvey  v.  U.  S.,  3  Ct. 
CI.  18.  CI.  38. 

*  Moore  v.  United  States,  4  Ct.  CI. 
139. 


342  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

that  tins  court  could  take  cognizance  of  the  claim.'  So  if  the 
United  States  refuse  to  accept  goods  according  to  an  express  con- 
tract with  a  party,  by  which  the  latter  suffers  damages,  a  claim  for 
the  same  may  be  maintained  in  this  court. ^  And  where  the  United 
States  took  possession  of  real  property  under  a  contract  of  purchase 
made  with  an  officer  of  the  government  who  had  no  authority  to 
make  it,  but  which  purchase  was  ratified  by  an  act  of  Congress, 
this  was  held  to  make  the  contract  binding  from  the  time  of  ratifi- 
cation, but  not  to  make  the  United  States  liable  for  the  rent  of  the 
property  from  the  time  of  purchase  to  the  time  of  ratification.^ 

§  406.  Jurisdiction  in  case  of  implied  contract. — Controversies 
have  arisen  as  to  the  jurisdiction  of  this  court  on  claims  based  upon 
alleged  implied  contracts  with  the  government.  The  claim,  as  we 
have  already  shown,  must  be  for  money,  and  to  constitute  an  im- 
plied contract  for  the  payment  of  money  there  must  necessarily  be 
some  consideration  therefor  ;  and  an  implied  contract  cannot  in  any 
case  arise  i)ut  of  the  acts  of  an  agent  who  has  no  authority  to  make 
an  express  contract.^  If  the  claim  is  for  money  received  by  the 
United  States,  it  must  also  appear  that  they  are  charged  with  a 
duty  to  pay  it  over  to  the  claimant ;  and  in  case  of  money  paid  by 
mistake,  it  must  appear  that  the  claimant  had  a  lawful  right  to  it 
when  it  was  receis^ed  by  the  United  States.^  And  money  erroneously 
exacted  of  a  claimant,  where  no  other  specific  remedy  is  provided, 
may  be  recovered  in  this  court,  as  such  a  claim  is  based  upon  an 
implied  contract  to  repay  the  same." 

§  407.  Instances  where  the  court  took  cognizance  of  cases  based 
upon  implied  contracts. — Where  the  United  States  had  entered 
upon  land  and  used  the  same,  without  any  express  contract  there- 
for, the  owner  was  allowed  to  prosecute  in  this  court,  on  the  implied 
contract  to  pay  for  the  use  of  the  same.'^  So  where  the  United 
States  chartered  a  vessel  of  the  owner  and  then  appropriated  it  to 

^  United  States  v.  Bostwick,  94  U.  7.     But  the  United  States  may  be  lia- 

S.  53  ;    s.  c,  12  Ct.  CI.  67.  ble  if  they  ratify  and  receive  the  bene- 

^  Gibbons  v.  United  States,  8  Wall,  fits  of  such  a  contract:  De  Cells  v.  V. 

269  ;  s.  c,  2  Ct.  CI.  421.  S.,  13  Ct.  CI.  117. 

•'*  Carpenter    v.    United    States,   17  ^  Knote  v.  United  States,  95  U.  S. 

Wall.  489  ;  s.  c,  6  Ct.  CI.  18.     But  149  ;  s.  c,  10  Ct.  CI.  397. 

see  Moore  v.  United  States,  10  Ct.  CI,  ^  Schlesinfjer  v.  United  States,  1  Ct. 

375,  where  the  owner  of  land  was  al-  CI.   16.     But  see  Nichols  v.  U.  S.,  7 

lowed  to  maintain  an  action  in  the  Wall.  122  ;  De  Celis  r.  U.  S.,  13  Ct.  CI. 

Court  of  Claims  to  recover  the  rent  117. 

and  income  thereof.  '  Johnson?;.  United  States,  4  Ct.  CI. 

*  Pitcher  v.  United  States,  1  Ct.  CI.  248. 


COURT    OF    CLAIMS.  343 

their  own  use,  under  the  provisions  of  the  charter  party,  the  owner 
was  allowed  to  prosecute  a  claim  for  its  value  in  this  court. ^  So 
where  the  United  States  received  goods  throuo-h  a  fraud  of  their 
agent,  the  owner  was  allowed  to  prosecute  an  action  in  this  court 
therefor.^  So  if  a  contract  made  by  one  person  for  goods  to  be 
delivered  by  another  person  to  the  United  States  is  void,  still 
the  person  who  delivers  the  goods  to  the  latter  may  recover  upon 
an  implied  contract  to  pay  for  the  same.^  So  if  an  officer  of  the 
United  States,  under  an  urgent  and  immediate  necessity  in  the  dis- 
charge of  his  duty,  takes  private  property  for  public  use  (except 
in  the  cases  mentioned  in  the  statute,  where  property  was  taken  by 
the  army  or  navy,  engaged  in  the  suppression, of  the  rebellion), 
there  is  an  implied  promise  to  pay  for  the  same,  and  the  owner 
may  maintain  an  action  therefor  in  this  court.*  So  a  person  who 
has  rendered  salvage  service  in  saving  property  of  the  United  States 
may  claim  compensation  therefor,  and  this  court  will  take  cognizance 
of  the  claim  as  one  based  upon  an  implied  contract.^  So  a  person 
who  had  paid  a  fine  pursuant  to  an  unlawful  sentence  of  a  military 
commission,  organized  in  a  state  contrary  to  law,  at  a  time  when 
the  courts  were  open,  was  allowed  to  prosecute  his  claim  in  this  court 
for  the  fine  so  paid.^  And  the  party  who  claims  for  an  excess  in 
the  payment  of  a  special  tax,  which  has  been  allowed  by  the  Com- 
missioner of  Internal  Revenue,  may  maintain  an  action  in  this  court 
therefor." 

§  408.  Instances  where  the  court  would  not  entertain  jurisdiction 
on  a  claim  of  implied  contract. — This  court  refused  to  entertain  a 
claim  for  a  recovery  of  property  confiscated  by  the  army  during  the 
rebellion,  although  the  claimant  had  been  pardoned.*  So  where 
the  United  States  took  possession  of  lands  under  a  treaty,  and  as 
trustee  for  the  Indians,  it  was  held  that  a  claimant  of  the  same  could 
not  prosecute  in  this  court  to  recover  compensation  therefor  as  owner 
of  the  same.^     So  a  person  who  attends  as  a  witness  before  either 

1  Bogert  V.  United  States,  2  Ct.  CI.  ^  Bryan  v.  United  States,  6  Ct.  CI. 
159;   Bogert  i\  United  States,  3  Ct.     128. 

CI.  18.  «  Devlin  v.  United  States,  12  Ct.  CI. 

2  United  States  v.  State  Bank,  96  U.     266. 

S.  30.  '  United  States  v.  Kaufman,  96  U. 

*  Heathfield  v.  United  States,  8  Ct.     S.  567  ;  s.  c,  11  Ct.  CI.  659. 

CI.  213.  8  Knote  v.  United  States,  95  U.  S. 

*  United  States  v.  Russell,  13  Wall.     149 ;  s.  c,  10  Ct.  CI.  397. 

623 ;  s.  c,  5  Ct.  CI.  121  ;  Grant  v.  »  Langford  v.  United  States,  12  Ct. 
United  States,  1  Ct.  CI.  41.  CI.  338. 


344  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

house  of  Congress  cannot  maintain  an  action  against  the  Unite<l 
States  for  his  fees.^  And  where  an  officer  of  the  government  took 
forcible  possession  of  land  for  public  use,  it  was  held  that  he  was 
thereby  guilty  of  a  tort,  and  that  as  no  implied  contract  could  arise 
therefrom,  this  court  could  have  no  jurisdiction  of  a  claim  based 
thereon.^ 

§  409.  Actions  for  infringement  of  patents. — It  will  be  manifest 
from  the  statutory  provisions  conferring  jurisdiction  upon  the  Court 
of  Claims,  and  the  authorities  heretofore  referred  to  construing  those 
provisions,  that  no  action  could  be  maintained  in  that  court  to 
recover  damages  against  the  United  States  for  the  infringement  of 
a  patent.^  Where  the  warden  of  a  penitentiary  used  a  machine 
that  infringed  a  patent,  and  paid  the  proceeds  arising  from  the  sale 
of  articles  made  therewith  to  the  United  States,  it  was  held  that 
the  patentee  could  not  prosecute  a  claim  to  recover  the  profits  of 
such  manufacture  and  sale  in  this  court.  But  if  the  United  States, 
through  their  duly  constituted  agents,  agree  to  pay  a  patentee  or 
his  assignee  for  the  use  of  a  patented  invention  a  certain  amount 
of  royalty,  then  the  patentee  or  assignee  of  such  patentee,  as  the 
case  may  be,  can  recover  on  the  contract  the  amount  agreed  to  be 
paid,  and  the  Court  of  Claims  would  take  cognizance  of  the  case.* 
And  if  a  patentee  should  offer  his  invention  to  the  United  States, 
and  they  through  their  duly  constituted  officers  and  agents  should 
act  upon  the  offer  and  adopt  and  use  the  invention,  the  former  could 
maintain  an  action  to  recover  thereon  what  the  inventioa  was  really 
worth,  in  the  absence  of  any  express  contract  in  reference  to  the 
amount  to  be  paid  therefor.^ 

§  410.  Jurisdiction  in  case  of  claims  referred  to  it  by  Congress. — 
The  act  provides  for  the  jurisdiction  of  the  Court  of  Claims  of  all 
claims  referred  to  it  by  either  house  of  Congress.  This  has  been 
held  to  embrace  the  case  of  a  claim  referred  to  it  by  a  resolution  of 
Congress ;  and  in  such  a  case  it  is  further  held  that  the  court  is 
subject  to  all  the  restrictions  prescribed  by  the  resolution.^ 

1  Lilley  v.  United  States,  14  Ct.  CI.  ^  McKeever  v.  United  States,  14  Ct. 
539.  CI.  396. 

^  Langford  v.  United  States,  101  U.  *  Atocha  v.  United  States,  6  Ct.  CI. 

S.  341.  69  ;  s.  c,  17  Wall.  439  ;  De  Groot  v. 

2  Fletcher  v.  United  States,  11  Ct.  United  States,  5  Wall.  419;  Roberts 
CI.  748.  V.  United   States,  6  Ct.  CI.  84  ;  s.  c, 

*  United  States  v.  Burnes,  12  W^all.  92  U.  S.  41  ;  Tillison  v.  United  States, 
246  ;  s.  c,  4  Ct.  CI.  113.  11  Ct.    CI.   758;    Harvey   v.   United 


COURT    OF    CLAIMS.  345 

§  411.  Provision  relating  to  set-offs,  counter-claims,  etc. — When- 
ever the  court  may  entertain  jurisdiction  of  an  action  against  the 
United  States  for  a  recovery  under  the  provisions  of  the  first  sub- 
division of  the  section  under  consideration,  the  second  subdivision 
provides  that  the  court  may  also  take  cognizance  of  all  set-offs, 
counter-claims,  claims  for  damages  or  other  demands  on  the  part 
of  the  United  States  against  the  person  making  the  claim  against 
them.  It  is  not  necessary  that  the  set-off  or  demand  against  the 
claimant  be  liquidated ;  the  statute  is  broad  enough  to  cover  all 
claims  against  him  or  those  whom  he  represents  ;  and  the  court  may 
hear  and  determine  demands  of  the  government  of  every  descrip- 
tion against  the  claimant,  and  set  off  the  amount  found  due  on  such 
demands  and  claims  of  the  government  upon  the  hearing  and  deter- 
mination of  the  cause.^  Where  the  United  States  had  recovered  a 
judgment  against  M.,  and  took  an  assignment  of  a  judgment  of  the 
latter  against  B.  in  satisfaction  of  the  former,  it  was  held  that  they 
might  set  off  the  latter  judgment  in  a  suit  brought  by  B.  in  the 
Court  of  Claims  to  recover  an  award  made  by  Congress  in  his  favor, 
although  he  had  assigned  the  award  to  another,  if  the  set-off  was 
acquired  before  notice  of  the  assignment." 

And  the  same  doctrine  applies  in  case  of  claim  for  an  internal 
revenue  tax.^  And  if  an  action  is  brouojht  on  a  iudo-ment  rendered 
against  the  United  States  for  property,  the  latter  may  set  off  the 
amount  of  the  taxes  due  them  on  the  property  for  which  the  judgment 
was  rendered.*  But  if  the  United  States  fail  to  claim  an  off-set 
or  demand  of  any  kind  which  they  might  have  set  up  on  a  claim 
made  before  the  court,  and  judgment  is  entered  in  favor  of  the 
claimant  for  the  value  of  property,  the  Secretary  of  the  Treasury 
of  the  United  States  cannot  afterwards  deduct  from  the  judgment 
the  tax  due  on  the  property.^ 

§  412.  A  set-off,  counter-claim  or  other  defence  must  be  pleaded. 
— In  order  for  the  government  to  avail  itself  of  the  second  sub- 
States,  12  Ct.  CI.  141 ;  Same  v.  Same,  *  Bonnafon  v.  United  States,  14  Ct. 
13  Ct.  CI.  322.  CI.  484. 

.     '  Allen  «.  United  States,   17  Wall.         «  United  States  w.  0" Grady,  22  Wall. 
207.  641  ;  s.  c,  8  Ct.  CI.  451.     See  also  in 

'  Macauley  v.  United  States,  1 1  Ct,  special  cases  where  other  provisions 
CI.  ()93.  are  made,  Jones  v.  United  States,  4 

*  Roman  v.  United  States,  11  Ct.  CI.  Ct.  CI.  197 ;  Roman  v.  United  States, 
761.  11   Ct.  CI.  761;     also    McKnight  v. 

United  States,  98  U.  S.  179. 


346  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

division  of  the  section  under  consideration  relating  to  set-offs,  coun- 
ter-claims, etc.,  it  is  necessary  that  these  matters  of  defence  be 
specially  pleaded.  The  judgments  of  this  court,  where  no  appeal 
is  taken,  are  absolutely  conclusive  of  the  rights  of  the  parties, 
unless  a  new  trial  is  granted  as  provided  by  the  statutes.^ 

§  413.  Jurisdiction  of  claims  of  disbursing  officers. — The  third 
subdivision  of  the  section  under  consideration  provides  for  the 
jurisdiction  of  the  Court  of  Claims  in  case  of  a  claim  for  relief 
from  responsibility  of  any  disbursing  officer  of  the  United  States 
on  account  of  capture  or  otherwise,  while  in  the  line  of  his  duty, 
of  government  funds,  vouchers,  records  or  papers  in  his  charge, 
etc.  This  more  particularly  embraces  paymasters,  quartermasters 
and  commissaries  of  subsistence. 

It  has  been  held,  under  this  provision,  that  the  statute  applied 
to  cases  of  loss  occurring  before  its  adoption,  as  well  as  to  those 
occurring  subsequently  thereto.^  The  officers  mentioned  in  the 
statute  can  have  no  relief  under  this  provision,  nor  the  court  have 
any  jurisdiction  of  such  a  case,  unless  there  is  an  existing  liability  at 
the  time  of  the  application.  If  the  liability  once  existing  has  been 
discharged,  there  is  no  authority  for  the  court  to  act.* 

Under  this  provision  a  disbursing  officer  may  obtain  relief  in 
this  court  from  responsibility  on  account  of  a  loss  of  government 
funds  by  robbery.*  But  he  is  not  entitled  to  relief  from  responsi- 
bility for  any  loss  occurring  through  the  embezzlement  of  a  clerk 
in  his  employment ;  nor  for  the  loss  of  money,  unless  the  money 
was  at  the  time  of  the  loss  in  his  possession  and  under  his  control.^ 

§  414.  Claims  for  the  proceeds  of  captured  or  abandoned  property. 
— Subdivision  4  of  the  section  giving  jurisdiction  to  the  Court 
of  Claims  confers  power  on  that  court  to  hear  and  determine  all 
claims  for  the  proceeds  of  captured  or  abandoned  property,  as  pro- 
vided by  the  acts  of  March  12,  1863,  and  July  2,  18(34.  And 
such  subdivision  excludes  every  other  mode  of  redress  against  the 
United  States  or  their  agents,  in  the  cases  referred  to.  But  the 
court  has  no  jurisdiction  of  claims  against  the  United  States  grow- 

1  United  States  w.O'Grady,  13  Wall.         =*  Hall   v.   United  States,  9  Ct.  CI. 
664.      As  to  new  trials,  see  ^^  10«7,     270. 
1088,  of  the  Rev.  Stat.  *  United  States  v.   Clark,  96  U.  S. 

-  Glenn  v.  United  States,  4  Ct.  CI.     37  ;  s.  c,  11  Ct.  CI.  698, 
501.  'Hall  V.  United  States,  9  Ct.  CI. 

270. 


COURT    OF    CLAIMS.  347 

ing  out  of  the  destruction  or  appropriation  of,  or  damage  to,  prop- 
erty by  the  army  or  navy,  engaged  in  the  suppression  of  the  rebellion. 

Under  this  subdivision  and  the  provisions  of  the  acts  referred  to 
therein,  it  was  held  that  no  claim  could  be  maintained  for  property 
which  had  been  used,  or  was  intended  to  be  used,  in  carrying  on 
war  against  the  United  States,  and  that  the  court  could  not  take 
jurisdiction  of  a  claim  against  the  United  States  for  property  taken 
or  destroyed  by  the  army  or  navy  of  the  United  States  while  en- 
gaged in  suppressing  the  rebellion.  The  only  remedy  in  such  a 
case  must  be  through  the  executive  or  legislative  departments  of 
the  government.' 

Under  the  provisions  of  these  statutes  it  has  further  been  held 
that  no  action  can  be  maintained  to  recover  the  proceeds  of  cap- 
tured or  abandoned  property  unless  the  property  on  which  the 
claim  is  based  was  captured  or  seized,  and  sold,  pursuant  to  the  acts 
relating  to  captured  and  abandoned  property,  and  the  proceeds  of 
the  sale  thereof  were  paid  into  the  treasury  of  the  United  States. 
or  went  into  the  hands  of  some  officer  with  the  approval  of  the 
Treasurer,  and  the  claimant  was  the  owner  of  the  property  and 
entitled  to  the  proceeds  thereof.  These  facts  should  be  clearly 
stated  in  the  pleading,  and  must  be  established  by  sufficient  proof 
on  the  trial  to  maintain  the  claim. ^  If  the  proceeds  came  into  the 
hands  of  some  military  officer  who  used  them  in  paying  the  ex- 
penses of  ordinary  military  operations,  or  for  other  purposes  autho- 
rized by  law,  and  these  disbursements  have  been  allowed  by  the 
accounting  officers  of  the  treasury,  this  has  been  held  equivalent  to 
payment  into  the  treasury.^ 

§  415.  Presumptions  in  relation  to  the  proceeds  of  captured 
property. — Where  the  proceeds  of  the  property  sold  were  traced  to 
the  hands  of  an  officer  whose  duty  it  was  to  transmit  them  to  the 

'  Slawson  v.  United  States,  6  Ct.  CI.  the  property  was  captured  on  land  andf 

370;    s.    c,    16    Wall.    31U;     United  condemned  as  prize,  the  claimant  may 

States?;.  Kimball,  13  Wall.  636  ;Gear-  prosecute  an  action  in  this  court  for 

ing  V.  United  States,  3  Ct.  CI.  165.  the  proceeds  :  99  U.  S.  372  ;  Cook  v. 

^  Spencer  ?;.  United  States,  8  Ct.  CI.  United  States,   9  Ct.   CI.    288;  Win- 

288  ;     s.   c,    91    United    States  577  ;  Chester  v.   United  States,  14  Ct.   CI. 

United  States  v.  Ross,  92  U.  S.  281  ;  13  ;  s.  c,  99  U.  S.  372. 

s.  c,  10  Ct.  CI.  424 ;  Sharp  v.  United  ^  Fleeker  v.   United   States,  14  Ct. 

States,  12  Ct.  CI.  638;  Smith  v.  Uni-  CI.  252;  Hudnal  v.   United  States,  3 

ted  States,   14  Ct.    CI.   189;    United  Ct.  CI.  291;  Block  v.   United  States, 

States  V.  Anderson,  9  Wall.  56  ;  Bond  7  Ct.  CI.  4u6. 
V.  United  States,  2  Ct.  CI.  529.  Though 


348  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

Secretary  of  the  Treasury,  and  a  fund  was  shown  to  be  in  the 
treasury  which  might  have  been  derived  in  whole  or  in  part  from 
the  money  thus  transmitted,  it  was  held  that  there  was  a  presump- 
tion that  the  money  was  in  the  treasury.^  But  evidence  merely 
that  an  oflRcer  of  the  government  received  the  money  derived  from 
a  sale,  without  any  evidence  that  it  was  paid  into  the  treasury  or 
lawfully  expended  for  the  use  of  the  government,  affords  no  pre- 
sumption of  its  proper  disposition,  and  would  be  insufficient  to  base 
a  claim  for  the  proceeds.  And  proof  that  the  property  came  into 
the  possession  of  an  employe  of  a  treasury  agent  would  raise  no 
presumption  that  it  came  into  the  treasury. 

§  416.  The  claimant  must  alw^ays  have  been  a  loyal  citizen. — 
Section  1072  of  the  Revised  Statutes  provides  that  the  petition  of 
the  claimant  should  set  forth  "  that  the  claimant,  and  where  the 
claim  has  been  assigned,  the  original  and  every  prior  owner  thereof, 
if  a  citizen,  has  at  all  times  borne  true  allegiance  to  the  government 
of  the  United  States,  and  whether  a  citizen  or  not,  has  not  in  any 
way  voluntarily  aided,  abetted  or  given  encouragement  to  rebellion 
against  the  said  government,  and  that  he  believes  the  facts  stated 
in  the  petition  to  be  true.  And  the  said  petition  shall  be  verified 
by  the  affidavit  of  the  claimant,  his  agent  or  attorney."  Under 
this  statute  it  was  held  that  if  the  property  of  a  loyal  and  a  dis- 
loyal person  was  intermingled  and  partly  destroyed  by  fire,  and  the 
remaining  property  captured,  under  the  provisions  of  the  act  relat- 
ing to  captured  and  abandoned  property  the  disloyal  person  cannot 
waive  his  interest  in  the  property  thus  captured,  so  as  to  enable  the 
loyal  party  to  recover  the  proceeds  of  the  whole  property.^ 

§  417.  Claim  for  property  destroyed,  appropriated  or  injured  by 
the  army  or  navy. — The  subdivision  under  consideration  excepts 
from  the  jurisdiction  of  the  Court  of  Claims  "any  claim  against 
the  United  States  growing  out  of  the  destruction  or  appropriation 

^  Jenkins  v.  United  States,  8  Ct.  CI.  recover  money  taken  from  him,  on 

464 ;  Crussell  v.  United  States,  4  Id.  account  of  disloyalty,  by  a  military 

553;  s.  c,  14  Wall.  1  ;  United  States  officer.     If  the  property  was  captured 

V.    Pugh,    99    U.    S.   265  •,    Henry   v.  before  July  17,  18(32,  no  action  can  be 

United  States,  6  Ct.  CI.  389 ;   Silvey  maintained :  Moore  v.  United  States, 

V.  United  States,  4  Id.  490;    s.  c,  7  10  Ct.  CI.  375.     If  the  property  was 

Id.  178.  sold  after  July  17,  1862,  and  before 

-  O'Keefe  v.  United  States,  5  Ct.  CI.  March  12,  1863,  and  the  proceeds  paid 

674;    s.  c,  11    Wall.   178.      But   see  into  the  treasury,  an  action  may  be 

Mezeix  u.  United  States,  6  Ct.  CI.  232,  maintained   therefor:    United    States 

where  a  loyal  citizen  was  allowed  to  v.  Pugh,  99  U.  S.  265. 


COURT    OF    CLAIMS.  349 

of,  or  damage  to,  property  by  the  army  or  navy,  engaged  in  the 
suppression  of  the  rebellion."^ 

The  term  "appropriation"  used  in  the  statute  includes  all  taking 
and  use  of  property,  either  real  or  personal,  by  the  army  or  navy, 
engaged  in  suppressing  the  rebellion,  not  authorized  by  any  con- 
tract with  the  government.  The  use  may  be  temporai-y  or  perma- 
nent, but  if  the  taking  and  use  is  not  obtained  by  a  lawful  contract 
with  the  government,  the  taking  and  use  is  an  "appropriation" 
within  the  meaning  of  the  statute,  and  the  Court  of  Claims  can  take 
no  jurisdiction  of  a  claim  based  thereon.^  The  same  rule  was  held 
to  apply  even  where  an  officer  of  the  army  took  the  property  in  an 
insurrectionary  state,  and  promised  to  pay  therefor  and  gave 
vouchers  for  it.^  So  a  claim  arising  from  the  impressment  of  a 
vessel  by  a  military  officer  engaged  in  suppressing  the  rebellion 
cannot  be  prosecuted  in  the  Court  of  Claims.^ 

But  if  an  army  officer  took  possession  of  premises  under  a  valid 
contract,  then  the  owner  can  maintain  an  action  on  the  contract ; 
and  if  damages  are  sustained  by  alterations  made  in  the  premises 
thus  taken,  the  owner  may  have  a  remedy  therefor  in  this  court. ^ 
And  where  a  vessel  was  chartered  to  the  United  States  by  the 
owner,  and  a  military  officer  sunk  her  for  military  purposes,  it  was 
held  that  this  court  had  jurisdiction  of  a  claim  based  thereon  for 
the  value  of  the  vessel.^  But  where  an  officer  made  a  contract  with 
the  owner  for  the  use  or  purchase  of  property  during  the  rebellion, 
and  for  military  purposes,  but  he  had  no  authority  so  to  do,  it  was 
held  that  the  owner  could  not  maintain  an  action  therefor  in  this 
court."^  Where  the  claimant's  money  was  taken  by  the  army,  and 
thus  came  into  the  possession  of  the  United  States,  it  was  held  that 
this  was  not  an  appropriation  by  the  army,  and  that  an  action 
therefor  in  this  court  should  be  sustained.^ 

1  Rev.  Stat.  §  1059,  sub.  4;  Corbett  455;  United  States  v.  Russell,  13 
V.  United  States,  1  Ct.  CI.  139  ;  Waters     Wall.  623  ;  s.  c,  5  Ct.  CI.  121. 

V.  United  States,  4  Id.  389.  ^  Bogert  v.  United  States,  2  Ct.  CI. 

2  Filor  V.  United  States,  9  Wall.  45.  159 ;  Same  v.  Same,  3  Id.  18.  See 
See  also  Bishop  v.  United  States,  4  also  Waters  v.  United  States,  4  Id. 
Ct.  CI.  448  :    Pugh  v.  United  States,  389. 

13  Wall.   633;   s.  c,  5  Ct.  CI.  113;  ^  giawson  y.  United  States,  4  Ct.  CI. 

Smith  V.  United  States,  14  Ct.  CI.  189  ;  87  ;    Same  v.  Same,  6  Id.  370  ;    s.  c, 

Raines  w;  United  States,  11  Id.  648.  16   Wall.    310;    Lindsley    v.    United 

•^  Patterson  v.  United  States,  6  Ct.  States,  4  Ct.  CI.  359  ;  Filor  v.  United 

CI.  60.  States,  9  Wall.  45. 

*  United  States  v.  Kimbal,  13  Wall.  *  Pennsylvania  Co.  v.  United  States, 

636  ;  s.  c,  5  Ct.  CI.  252.  7  Ct.  CI.  401. 

'  Provine  v.  United  States,  5  Ct.  CI. 


350  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

§  418.  Private  claims  in  Congress  must  be  transmitted  to  the 
Court  of  Claims. — As  one  of  the  objects  to  be  obtained  by  the  con- 
stitution of  the  Court  of  Claims  was  to  relieve  Congress  of  the 
importunities  of  claimants  against  the  government,  and  of  the 
labor  and  vexation  necessarily  connected  with  the  numerous  peti- 
tions for  relief  of  those  who  had  private  claims  against  the  govern- 
ment, it  was  wisely  provided  that  "all  petitions  and  bills  praying 
or  providing  for  the  satisfaction  of  private  claims  against  the  gov- 
ernment, founded  upon  any  law  of  Congress,  or  upon  any  regulation 
of  an  executive  department,  or  upon  any  contract,  express  or 
implied,  with  the  government  of  the  United  States,  shall,  unless 
otherwise  ordered  by  the  house  in  which  they  are  introduced,  be 
transmitted  by  the  Secretary  of  the  Senate  or  the  Clerk  of  the 
House  of  Representatives,  with  all  the  accompanying  documents,  to 
the  Court  of  Claims."^ 

This  provision  is  most  salutary,  as  it  removes  from  the  legislative 
department  and  the  arena  of  politics  matters  that  properly  belong 
to  the  judiciary  department  of  the  government,  where  justice  is  more 
likely  to  be  administered  both  to  the  claimant  and  the  government. 

§  419.  In  case  of  judgments  for  set-off  or  counter-claim;  hovr 
enforced. — We  have  noticed  that  the  statute  conferring  jurisdiction 
on  this  court  provides  also  that  the  court  shall  have  jurisdiction  of 
"  all  set-offs,  counter-claims,  claims  for  damages,  whether  liquidated 
or  unliquidated,  or  other  demands  whatsoever,  on  the  part  of  the 
government  of  the  United  States  against  any  person  making  claim 
against  the  government  in  said  court."  It  was  wisely  provided, 
further,  that  the  court  should  hear  and  determine  the  claim  against 
the  government  and  the  claim  for  the  government,  and  rend£r  such 
judgment  for  either  party  as  may  be  just.  In  the  former  case,  if  no 
appeal  is  taken  provision  is  made  for  the  satisfaction  of  the  judg- 
ment by  the  Secretary  of  the  Treasury,  as  we  shall  hereafter  notice  ;* 
but  in  the  latter  case  it  is  provided  that  the  transcript  of  such 
judgment  may  be  filed  in  the  clerk's  office  of  any  district  or  circuit 
court;  that  it  shall  be  entered  upon  the  records  thereof,  and  thereby 
become  a  judgment  of  such  court,  and  may  be  enforced  as  other 
judgments  of  such  court.     The  statute  provides: 

^  Rev.  Stat.  |  lOGO.  defeat  it,  but  judgment  will  not  in 

^  Rev.  Stat.  ^  1089.    Where  there  is  such  a  case  be  entered   against  the 

no  definite  evidence  as  to  the  amount  of  claimant :  Shrewsbury  v.  United  States, 

a  counter-claim,  if  it  appears  to  be  in  13  Ct.  CI.  183. 

excess  of  the  claim  it  may  be  used  to 


COURT    OF    CLAIMS.  351 

"  Upon  the  trial  of  any  cause  in  which  set-off,  counter-claim, 
claim  for  damages  or  other  demand  is  set  up  on  the  part  of  the 
government  against  any  person  making  claim  against  the  govern- 
ment in  said  court,  the  court  shall  hear  and  determine  such  claim 
or  demand  both  for  and  against  the  government  and  claimant ;  and 
if  upon  the  whole  case  it  finds  that  the  claimant  is  indebted  to  the 
government,  it  shall  render  judgment  to  that  effect,  and  such  judg- 
ment shall  be  final,  with  the  right  of  appeal  as  in  other  cases  pro- 
vided by  law.  Any  transcript  of  such  judgment,  filed  in  the  clerk's 
office  of  any  district  or  circuit  court,  shall  be  entered  upon  the  rec- 
ords thereof,  and  shall  thereby  become  and  be  a  judgment  of  such 
court  and  be  enforced  as  other  judgments  in  such  courts  are 
enforced."  ^ 

The  provision  therein  contained,  providing  for  the  filing  of  a 
transcript  in  the  office  of  the  clerk  of  any  district  or  circuit  court, 
and  thereby  making  it  a  judgment  of  such  court,  is  one  for  the 
benefit  of  the  government  only.  The  constitution  of  this  court  was 
for  the  benefit  of  claimants  and  a  matter  of  grace  on  the  part  of  the 
government,  and  the  mode  of  satisfaction  pointed  out  by  the  statute 
in  case  the  claimant  recovers  judgment  is  the  only  mode  of  satis- 
faction which  the  claimant  has. 

§  420.  No  jury  trials  in  the  Court  of  Claims. — The  great  spirit  of 
liberality  on  the  part  of  the  government  which  led  to  the  constitu- 
tion of  the  Court  of  Claims,  with  jurisdiction  to  hear  and  determine 
certain  claims  against  the  government,  did  not  extend  to  the  giving 
of  a  right  of  trial  by  jury  in  such  cases.  The  issues  of  law  as  well 
as  of  fact  must  be  tried  by  the  court,  and  the  provisions  of 
the  statute,  although  not  providing  for  the  trial  by  jury,  have  been 
held  to  be  constitutional.^ 

§  421.  Decrees  in  favor  of  paymasters  and  other  accounting  of- 
ficers.— We  have  noticed  the  jurisdiction  of  this  court  in  case  of 
claims  of  paymasters  and  other  accounting  officers  of  the  govern- 
ment on  account  of  losses  of  government  funds,  etc.,  by  capture  or 
otherwise  while  in  the  line  of  their  duty,  and  for  which  they  are 
held  responsible.^  In  case  such  a  claim  is  established  in  this  court 
another  section  provides  how  the  decree  must  be  satisfied.  It  pro- 
vides  as  follows :  "  Whenever  the  Court  of  Claims  ascertains  the 

1  See  Key.  Stat.  U061.  «  Id. 

2  M'Elrath  v.  U.  S.,  12  Ct.  CI.  312. 


352  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

facts  of  any  loss  by  any  paymaster,  quartermaster,  commissary  of 
subsistence  or  other  disbursing  officer,  in  cases  hereinbefore  pro- 
vided, to  have  been  without  fault  or  negligence  on  the  part  of  such 
officer,  it  shall  make  a  decree  setting  forth  the  amount  thereof,  and 
upon  such  decree  the  proper  accounting  officers  of  the  treasury  shall 
allow  to  such  officer  the  amount  so  decreed,  as  a  credit  in  the  settle- 
ment of  his  accounts."^ 

The  right  to  recover  in  such  a  case  will  depend  upon  the  officer's 
freedom  from  fault  in  connection  with  the  loss.  The  facts  of  the 
particular  case  must  be  considered  in  the  light  of  surrounding  cir- 
cumstances. What  acts  would  be  prudent  and  proper  under  the 
circumstances  and  necessities  of  a  case  might  in  other  cases,  owing 
to  other  facts  and  surrounding  circumstances,  be  imprudent  and 
negligent ;  and  what  Avould  excuse  a  party  for  acts  or  conduct  at 
one  time  and  place  may  not  do  so  under  another  state  of  facts. 
Great  care  and  caution  may  be  required  at  one  time  when  it  may 
not  be  required  at  others. 

Negligence  is  the  want  of  the  ordinary  care  which  a  prudent  man 
would  exercise  under  the  circumstances,  and  always  involves  the 
consideration  of  all  the  circumstances  of  the  particular  case.  But 
ordinary  care  in  one  case  may  be  gross  negligence  in  another.^  It 
was  held,  where  a  disbursing  officer  put  money  in  a  safe  at  his  quar- 
ters, and  a  robber  entered  during  his  temporary  absence  and  broke 
open  the  safe  and  took  the  money,  that  he  was  entitled  to  relief.^ 

So  if  money  deposited  by  him  in  a  safe  is  captured  by  the  enemy 
he  is  entitled  to  relief  in  the  Court  of  Claims.*  And  if  he  leaves 
his  safe  or  money-box  in  a  fort,  as  other  disbursing  officers  have  been 
accustomed  to,  and  it  is  stolen,  he  is  entitled  to  an  allowance  there- 
for.^^  So  if  he  puts  his  desk  containing  government  money  and 
vouchers  on  board  a  transportation  train,  and  it  is  captured  by  the 
enemy,  he  is  entitled  to  credit  for  the  money  and  vouchers.®     But 

1  Rev.  Stat.  |  1062.  *  Christian  v.  United   States,  7  Ct. 

2  Glenn  v.  United  States,  4  Ct.  CI.  CI.  431.  Or  if  captured  by  a  raiding 
.501  :  Malone  v.  United  States,  b  Ct.  party :  Prime  v.  United  States,  3  Ct. 
CI.  486.  CI.  209. 

•'  United  States  v.  Clark,  96  U.  S.  37 ;  »  Glenn   v.  United  States,  4  Ct.  CI. 

s.  c,  11  Ct.  CI.  698.     So  where  a  dis-  501. 

hursing   officer    under    like    circum-  •  Murphy  v.  United  States,  3  Ct.  CI. 

stances  left  money  in  his  safe  which  212.     So,  if  it  is  lost  while   carrying 

was  stolen  by  his  clerk,  who  had  a  it  in  the  breast-pocket  of  his  coat  in 

key  to  the  safe,  he  was  held  to  be  en-  the  way  such  officers  generally  carry 

titled  to  an  allowance  therefor  :  How-  money  :  Whittlesey  v.  United  States, 

ell  V.  United  States,  7  Ct.  CI.  512.  5  Ct.  CI.  452. 


COURT    OF   CLAIMS.  353 

wliere  a  paymaster  sent  a  package  of  $2058  by  an  orderly  detailed 
for  service  at  his  oflfice,  to  a  treasury  depository  in  Boston,  to  be 
deposited  there,  and  it  was  stolen  by  the  orderly,  but  the  loss  was 
not  discovered  for  several  days  thereafter,  in  a  suit  in  the  Court  of 
Claims  by  the  administrator  of  the  deceased  paymaster  asking  for 
relief  from  responsibility  on  account  of  the  loss,  it  was  held  that  the 
paymaster  was  at  fault  and  negligent  in  entrusting  so  large  a  sum 
of  money  with  the  orderly,  instead  of  depositing  it  himself  or  send- 
ing it  by  his  clerk,  and  therefore  that  although  the  orderly  had 
been  prosecuted  and  convicted  of  the  theft,  and  efforts  to  secure  the 
stolen  money  had  proved  unavailing,  the  petitioner  was  not  entitled 
to  the  relief  he  prayed.^ 

§  422.  When  the  head  of  an  executive  department  may  cause 
claims  to  be  transmitted  to  the  Court  of  Claims. — The  statute  pro- 
vides :  "  Whenever  any  claim  is  made  against  any  executive  depart- 
ment involving  disputed  facts  or  controverted  questions  of  law,  where 
the  amount  in  controversy  exceeds  three  thousand  dollars,  or  where  the 
decision  will  affect  a  class  of  cases  or  furnish  a  precedent  for  the  future 
action  of  any  executive  department  in  the  adjustment  of  a  class  of  cases 
without  regard  to  the  amount  involved  in  the  particular  case,  or 
where  any  authority,  privilege  or  exemption  is  claimed  or  denied 
under  the  Constitution  of  the  United  States,  the  head  of  such  depart- 
ment may  cause  such  claim,  with  all  the  vouchers,  papers,  proofs  and 
documents  pertaining  thereto,  to  be  transmitted  to  the  Court  of 
Claims,  and  the  same  shall  be  there  proceeded  in  as  if  originally 
commenced  by  the  voluntary  action  of  the  claimant;  and  the  Sec- 
retary of  the  Treasury  may,  upon  the  certificate  of  any  auditor  or 
comptroller  of  the  treasury,  direct  any  account,  matter  or  claim  of 
the  character,  amount  or  class  described  in  this  section  to  be  trans- 
mitted, with  all  the  vouchers,  papers,  documents  and  proofs  pertain- 
ing thereto,  to  said  court  for  trial  and  adjudication ;  provided^  that 
no  case  shall  be  referred  by  any  head  of  a  department  unless  it 
belongs  to  one  of  the  several  classes  of  cases  which,  by  reason 
of  the  subject-matter  and  character,  the  said  court  might,  under 
existing  laws,  take  jurisdiction  of  on  such  voluntary  action  of  the 
claimant."^ 

^  Holman  v.  United  States,  11  Ct.     Ct.  CI.  698  ;  s.  c,  96  U.  S.  37 ;  Hall's 
CI.  642.     But   see   Clark's   Case,   11     Case,  9  Ct.  CI.  270. 

■'  Rev.  Stat.  |  1063.  . 
23 


354  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

Although  claims  may  be  presented  to  any  executive  department  of 
the  government,  as  where  they  grow  out  of  contracts  with  such  depart- 
ment, still  the  Court  of  Claims  cannot  make  a  rule  requiring  such 
claims  to  be  presented  to  such  department  before  suing  on  them  in  that 
court.^  A  claim  may  be  referred  to  the  Court  of  Claims  at  any  time 
before  the  payment  thereof,  and  even  after  it  has  been  previously  re- 
ferred to  the  accounting  officers  and  allowed  by  the  auditor  and  comp- 
troller.^ And  if  a  claim  for  rent  is  made  to  an  executive  depart- 
ment, it  may  be  referred  to  this  court;  and  a  claim  may  be  referred 
although  it  involves  a  controversy  between  several  claimants.^ 

But  where  the  Secretary  of  War  transmitted  a  claim  to  the 
Court  of  Claims,  and  the  statement  showed  that  the  government 
occupied  certain  premises  and  that  certain  rent  was  due  therefor, 
but  that  two  parties  claimed  the  same,  and  only  one  of  the  parties 
appeared  in  the  court  and  prosecuted  his  claim,  the  government 
making  no  defence,  it  was  held  that  the  party  appearing  could  take 
no  default,  as  it  was  necessary  for  him  to  show  a  lorima  facie  right 
to  recover,  although  it  was  not  necessary  to  negative  the  conflict- 
ing claim  of  the  adverse  party. ^ 

§  423.  Procedure  in  cases  transmitted  by  departments. — In  all 
cases  where  claims  are  transmitted  by  the  head  of  any  department 
or  upon  the  certificate  of  any  auditor  or  comptroller,  according  to  the 
provisions  of  the  section  last  referred  to,  they  must  be  proceeded  in 
as  in  other  cases  pending  in  the  Court  of  Claims,  and  are  in  all  cases 
subject  to  the  same  rules  and  regulations.^  The  claimant  should 
in  such  cases  file  his  petition  in  this  court,  setting  forth  the  facts 
on  which  he  bases  his  claim,  and  the  court,  as  in  other  cases,  will 
decide  the  controversy  both  upon  the  law  and  the  facts.  If  there 
are  contesting  claimants  and  one  fails  to  appear  in  this  court,  a  cita- 
tion may  issue  for  him  to  appear ;  but  if  he  does  not  appear,  and 
the  government  does  not  controvert  the  claim,  still  the  claimant 
must  establish  his  claim  by  legal  proof.^     But  the  claimant  and  the 

1  Clyde  V.  United  Stsxtes,  18  Wall.  «  Bright  v.  United  States,  6  Ct.  CI. 

38;  s.  c,  5  Ct.  CI.  134.  118;    Same  v.  Same,  8  Ct.   CI.  326. 

^  Delaware    Steamboat    v.    United  The  allowance  of  a  claim  by  an  ac- 

Stateg,  5  Ct.  CI.  55  ;  Winnissimmet  Co.  counting  officer  will  not  make  out  a 

v.  United  States,  12  Ct.  CI.  319.  prima  facie  case  in  favor  of  the  peti- 

^  Bright  V.  United  States,  6  Ct.  CI.  tioner  in  the  Court  of  Claims ;  Mc- 

118.  Knight  v.  United  States,  13   Ct.  CI 

*  Bright's  Case.  8  Ct.  CI.  326.  292 ;  s.  c,  98  U.  S.  179. 

5  Rev.  Stat.  ^  lU6-i. 


COURT   OF   CLAIMS.  355 

head  of  a  department  may  agree  upon  a  statement  of  facts,  and 
submit  only  a  question  of  law  to  this  court.^ 

The  amount  of  any  j5nal  judgment  or  decree  rendered  in  any 
case  transmitted  to  this  court  from  the  head  of  any  department 
must  be  paid  out  of  any  specific  appropriations  applicable  to  the 
case,  if  any  such  there  be ;  and  if  no  such  appropriation  exists, 
then  the  judgment  or  decree  must  be  paid  in  the  same  manner  as 
other  judgments  of  the  court. ^ 

§  424.  Claims  pending  in  other  courts  cannot  be  prosecuted  in 
the  Court  of  Claims. — The  statute  prohibits  any  person  from  filing 
or  prosecuting  in  the  Court  of  Claims,  or  in  the  Supreme  Court 
on  appeal  therefrom,  any  claim  for  or  in  respect  to  which  he  or 
any  assignee  of  his  has  pending  in  any  other  court  any  suit  or 
process  against  any  person  who,  at  the  time  when  the  cause  of 
action  alleged  in  such  suit  or  process  arose,  was  in  respect  thereto 
acting  or  professing  to  act  mediately  or  immediately  under  the 
authority  of  the  United  States.^ 

§  425.  Aliens  may  prosecute  claims  in  certain  cases. — An  alien 
who  is  a  citizen  or  subject  of  any  government  which  accords  to 
citizens  of  the  United  States  the  right  to  prosecute  claims  against 
such  government  in  its  courts  has  the  privilege  of  prosecuting 
claims  against  the  United  States  in  the  Court  of  Claims,  if  such 
court  by  reason  of  its  subject-matter  and  character  may  take 
jurisdiction.*  The  right  to  prosecute  in  such  cases  depends  upon 
the  reciprocal  rights  of  our  citizens  in  the  courts  of  the  govern- 
ment to  which  the  alien  owes  allegiance  ;  but  such  alien  can  only 
prosecute  such  claims  as  a  citizen  could  prosecute.  This  right  of 
aliens  will  be  accorded  even  though  the  foreign  government  may 
reserve  the  right  to  deny  a  remedy  to  our  citizens  in  its  courts 
against  it,  in  certain  sporadic  cases.^ 

The  following  mentioned  governments  accord  to  citizens  of  the 
United  States  the  right  to  prosecute  claims  in  their  courts  against 
their  governments,  as  fully  and  substantially  as  they  are  allowed  to 
prosecute  against  the  government  of  the  United  States ;  to  wit, 
Great  Britain,  France,  Belgium,  Italy,  Prussia,  Spain  and  Switzer- 

1  Amoskeag  v.  United  States,  6  Ct.         *  Rev.  Stat.  §  1068. 

CI.  99  ;  Broulatour  v.  United  States,  7  ^  United  States  v.  O'Keefe,  11  Wall. 

Ct.  CI.  555.  178  ;    Carlisle   v.  United    States,    16 

2  Rev.  Stat.  §  1065.  Wall.  147. 

3  Rev.  Stat.  §  1067. 


356  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

land.  Hence  an  alien  owing  allegiance  to  either  of  these  govern- 
ments may  maintain  an  action  in  the  Court  of  Claims,  in  any  of 
those  cases  where  the  court  would  have  jurisdiction  if  a  citizen  was 
the  claimant.* 

The  section  under  consideration  was  adopted  July  27,  1867,  pre- 
vious to  which  time  there  Avas  no  limitation  of  the  jurisdiction  of 
the  court  on  the  ground  of  alienage.  This  section  then  was  one  of 
limitation  and  restriction.  Therefore  where  a  suit  was  brought  by 
an  alien,  after  the  organization  of  the  court  and  the  conferring  of 
jurisdiction  upon  it,  but  before  the  adoption  of  the  section  now 
under  consideration,  the  jurisdiction  of  the  court  could  not  be  affect- 
ed by  the  fact  of  alienage,  or  the  rights  and  privileges  of  American 
citizens  in  the  courts  of  the  government  to  which  the  alien  owed 
allegiance.^ 

§  426.  Limitation  of  actions  in  the  Court  of  Claims. — The  Statute 
limits  the  time  of  presenting  claims  to  this  court  for  adjudication 
as  follows:  "Every  claim  against  the  United  States,  cognizable  by 
the  Court  of  Claims,  shall  be  forever  barred  unless  the  petition 
setting  forth  a  statement  thereof  is  filed  in  the  court,  or  transmitted 
to  it  by  the  secretary  of  the  Senate  or  clerk  of  the  House  of  Rep- 
resentatives as  provided  by  law,  within  six  years  after  the  claim 
first  accrues ;  provided,  that  the  claims  of  married  women  first 
accrued  during  marriage,  of  persons  under  the  age  of  twenty-one 
years  first  accrued  during  minority,  and  of  idiots,  lunatics,  insane 
persons,  and  persons  beyond  the  seas  at  the  time  the  claim  accrued 
entitled  to  the  claim,  shall  not  be  barred  if  the  petition  be  filed  in 
the  court  or  transmitted  as  aforesaid,  within  three  years  after  the 
disability  has  ceased ;  but  no  other  disability  than  those  enume- 
rated shall  prevent  any  claim  from  being  barred,  nor  shall  any  of 
such  disabilities  operate  cumulatively."^ 

1  United  States  t\  O'Keefe,  11  Wall.  637;  Bulwinkle  v.   United    States,  4 

178 ;  s.  c,  5  Ct.  CI.  674  ;  Carlisle  v.  Ct.  CI.  395;  Mentz  v.  United  States,  4 

United   States,  16  Wall.  147  ;    Roths-  Ct.  CI.  471.    The  right  to  sue  is  given 

childs  V.  United  States,  6  Ct.  CI.  2U4  ;  under  this  section  to  an  alien,  although 

Dauphin  v.  United    States,  6  Ct.   CI.  a  citizen  of  the  United  States  may  be 

221  ;  De  Give  v.  United  States,  7  Ct.  required  to  give  security  for    costs : 

CI.  517;  Fichera  v.  United    States,  9  Brown  v.  United  States,  5  Ct.  CI.  571. 

Ct.  CI.  254 ;  Brown  v.  United  States,  ^  Bev.  Stat.  ^   1069 ;    McKnight  v. 

5  Ct.  CI.  571 ;  Noling  v.  United  States,  United  States,  98  U.  S.  179  ;  s.  c,  13 

6  Ct.  CI.  269  ;  Lobsiger  v.  United  Ct.  CI.  292 ;  Cross  v.  United  States,  4 
States,  5  Ct.  CI.  687.  Ct.  CI.  271  ;    Bell  v.  United  States,  9 

■'  Schufer  v.  United  States,  4  Ct.  CI.  Ct.  CI.  302;  s.  c,  20  Wall.  179;  Camp- 
529  ;  Wagner  v.  United  States,  5  Ct.  CI.     bell  v.  United  States,  13  Ct.  CI.  108. 


COURT    OF    CLAIMS.  357 

The  provisions  of  this  section  have  been  Held  not  to  apply  to 
suits  pending  at  the  tinae  of  its  adoption/  nor  to  claims  for  the  pro- 
ceeds of  captured  or  abandoned  property,  as  in  the  latter  case  the 
claim  was  barred  under  the  provisions  of  the  statute  relating  there- 
to, unless  the  petition  therefor  was  filed  within  two  years  after  the 
20th  day  of  August,  I868.2 

It  is  not  essential  that  the  limitation  should  be  pleaded  as  a 
defence,  but  the  court  is  bound  to  take  notice  of  the  fact  that 
the  period  limited  by  law  has  expired,  if  it  appears  on  the  face  of 
the  petition  or  by  the  evidence  in  the  case.^ 

§  427.  When  the  time  commences  to  run. — Under  the  provisions 
of  this  Statute  of  Limitation,  where  the  claim  was  for  the  surplus  of 
the  proceeds  of  land  sold  for  a  direct  tax,  it  was  held  that  the  cause 
of  action  accrued  upon  the  refusal  of  the  Secretary  of  the  Treasury 
to  pay  the  money.*  But  where  the  claim  is  for  money  received  by 
the  United  States  and  paid  into  the  treasury,  the  action  must  be 
brought  within  six  years  after  it  is  thus  paid  in.^  If  the  claim 
arises  on  a  contract  for  the  sale  of  goods,  the  suit  must  be  brought 
within  six  years  from  the  stipulated  time  of  payment.^  If  the 
claimant  merely  seeks  to  have  a  sum  of  money,  lost  by  him  as  a 
disbursing  officer,  allowed  to  him  on  the  settlement  of  his  accounts 
with  the  government,  the  statute  does  not  begin  to  run  until  the 
accounting  officers  of  the  treasury  refuse  to  allow  the  sum  lost  as 
a  valid  credit  in  the  settlement  of  the  accounts.'' 

If  a  collector  of  customs  pays  money  into  the  treasury,  in  com- 
pliance with  a  demand  of  the  Treasury  Department,  which  he  is 
entitled  to  retain  as  a  compensation  for  his  services,  the  statute 

^  Parlin  v.  United  States,  1   Ct,  CI.         *  Taylor  v.  United  States,  14  Ct.  CI. 

174.  339. 

^  United    States    v.     Anderson,     9        *  Clark  v.  United  States,  99  U.  S. 

Wall.  56 ;  s.  c,  4  Ct.  CI.  467  ;  Gross-  493. 

meyer  v.  United  States,  4  Ct.  CI.  1  ;         ®  Bartelle  v.  United  States,  7  Ct.  CI. 

Hamner  v.  United  States,  13  Ct.  CI.  7  ;  297. 

Haycroftw.  United  States,  22  Wall.  81;         '  United   States  v.  Clark,  96  U.S. 

s.  c,  10  Ct.  CI.  95  ;  Schafer  v.  United  37  ;    s.  c,   11  Ct.  CI.  698  ;    Smith  v. 

States,  4   Ct.    CI.    529;     Persons     v.  United   States,    14   Ct.    CI.    114.      If 

United   States,  10  Ct.  CI.  502.     Ape-  claims   are  presented   for  settlement 

tition  for  the  proceeds  of  captured  or  within  six  years,  to  the  proper  head 

abandoned  property  could  not  be  en-  of  an  executive  department,  they  are 

tertained  before  the  suppression  of  the  not  barred    if  more   than   six   years 

rebellion  :    Tibbets  v.  United  States,  1  transpire  before  they  are  referred  by 

Ct.  CI.  196;  s.  c,  2  Ct.  CI.  582.  such    department    to    the    Court   of 

^  Kendal  v.  United  States,  14  Ct.  CI.  Claims  :  United  States  v.  Lippitt,  100 

122.  U.  S.  663. 


358  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

begins  to  run  from  flie  time  of  tlie  payment.^  If  the  claimant  dies 
before  the  claim  becomes  due,  the  statute  will  not  begin  to  run 
until  an  administrator  is  appointed.'^  But  if  the  statute  begins  to 
run  in  the  lifetime  of  the  claimant,  its  operation  will  not  be  sus- 
pended by  his  death. ^  If  the  claim  is  properly  made  within  the 
time  prescribed,  the  petition  may  be  amended,  although  more  than 
six  years  have  elapsed  since  the  claim  accrued  ;  and  this  is  especially 
the  case  where  the  amendment  only  increases  the  ad  damnum  laid 
in  the  original  petition.* 

§  428.  The  Court  of  Claims  may  establish  rules  for  its  government 
and  practice. — The  Court  of  Claims  has  authority  to  establish  rules 
for  its  government,  and  for  the  regulation  of  practice  therein,  and 
it  has  authority  to  punish  for  contempt  in  the  .manner  prescribed 
by  the  common  law.  It  may  appoint  commissioners  and  exercise 
such  powers  as  are  necessary  to  carry  into  effect  the  powers  given 
by  law.^  For  rules  established  by  this  court,  see  post.  The 
court  Avill  appoint  a  special  commissioner  where  there  are  compli- 
cated accounts  or  complicated  facts  to  be  passed  upon,  to  whom 
they  will  be  referred  to  state  the  accounts,  and  report  his  finding 
on  the  facts. "^  So,  if  the  claimant  does  not  in  his  petition  set  forth 
the  items  of  his  account,  the  court  may  refer  the  case  to  a  special 
commissioner,  to  state  an  account  at  the  expense  of  the  claimant.^ 
If  there  are  several  claimants  seeking  to  recover  the  proceeds  of  a 
common  fund  held  by  the  United  States,  the  court  may  properly 
refer  the  case  to  a  commissioner  to  marshal  the  assets  and  charge 
it  with  the  proper  losses,  so  that  justice  may  be  done. ^ 

If  a  cause  is  referred  to  a  special  commissioner  to  state  an  ac- 
count, notice  should  be  given  to  the  parties  to  appear  before  him 
for  that  purpose;  and  if  either  party  is  not  satisfied  with  his  state- 

^  Lawson  v.   United  States,  14  Ct.  ^  Sierra  v.  United  States,  9  Ct.  CI. 

CI.  332.     See  also  Bachelor  v.  United  224. 

States,  8  Ct.  CI.  235;    Ellsworth  v.  *  Griffin  w.  United  States,  13  Ct.  CI. 

United  States,  14  Ct.  CI.  382.    No  ex-  257  ;    Devlin  v.  United  States,  12  Ct. 

ception  can  be  engrafted  on  the  stat-  CI.  266. 

ute,  however  reasonable   and  just  it  *  Rev.  Stat.  |  1070. 

may  appear :  Cross  v.  United  States,  *  United  States  v.  Raymond,  92  U. 

4  Ct.  CI.  271  ;  and  payment  of  part  S.  651  ;  Lawrence  v.  United  States,  6 

of  the  debt  will  not  take  the  case  out  Ct.  CI.  79. 

of  the  operation  of  the  statute:  United  ''Jones  v.  United  States,  4  Ct.  CI. 

States  V.  Wilder,  13  Wall.  254.  197. 

^  Fulenweider  v.   United   States,  9  ^  Persons  v.  United  States,  10  Ct.  CI. 

Ct.  CI.  403.  502  :  Crowell  v.  United   States,  6  Ct. 

CI.  23. 


COUKT    OF    CLAIMS.  359 

ment  of  the  account,  or  the  finding  of  facts,  he  should  except  to  the 
report.^ 

The  judges  and  clerks  of  the  court  are  aulhorized  to  administer 
oaths  and  affirmations,  take  acknowledgments  of  instruments  in 
writing  and  jjive  certificates  of  the  same.^ 

§429.  The  petition;  what  it  should  contain. — The  petition  must 
in  all  cases  set  forth  the  claim  and  any  action  of  Congress  or  by  any 
of  the  departments  thereon,  if  any  action  has  been  had.  It  should 
also  set  forth  what  persons  are  the  owners  of  the  claim  or  interested 
in  it,  and  when  and  upon  what  consideration  they  became  so  inter- 
ested therein.  It  should  also  state  that  no  assigiiment  or  transfer 
of  the  claim,  or  any  part  thereof  or  interest  therein,  has  been  made, 
except  as  stated  in  the  petition,  and  that  the  claimant  is  justly 
entitled  to  the  amount  therein  claimed  from  the  United  States  after 
deducting  all  just  credits  and  off-sets.  And  it  was  formerly  required 
that  it  should  further  state  that  claimant,  and  where  the  claim  has 
been  assigned,  that  the  original  and  prior  owner  thereof,  if  a  citizen, 
has  at  all  times  borne  true  allegiance  to  the  government  of  the 
United  States,  and,  whether  a  citizen  or  not,  has  not  voluntarily 
aided,  abetted  or  given  encouragement  to  rebellion  ag.iinst  the  gov- 
ernment of  the  United  States,  and  that  he  believes  the  facts  as 
stated  in  the  petition  to  be  true.  But  since  the  recent  decision 
relating  to  the  effect  of  the  proclamation  of  amnesty  and  general 
pardon,  the  court  does  not  require  an  allegation  of  loyalty  in  the 
petition.^  The  petition  must  be  verified  by  the  plaintiff  or  his  agent 
or  attorney.'' 

The  petition  should  set  forth  the  facts  on  which  the  claimant  bases 
his  claim  with  precision  and  without  ambiguity  ;  and  if  there  is  un- 
certainty in  the  language  used,  it  will  be  construed  most  strongly 
against  the  claimant.^  It  need  not  set  forth  the  evidence  which 
is  to  be  used  to  prove  the  facts,  but  it  should  state  the  facts  upon 
which  the  claim  rests."    If  the  petition  is  to  recover  money  illegally 

1  Jones  V.  United  States,  4  Ct.  CI.  States,  1  Ct.  CI.  332;  Guttmanw.  Uni- 

197  :  Bright  v.  United  States,  12  Ct.  ted  States,  6  Ct.  CI.  111. 

CI.  646.  «  Brown   v.  United  States,  1  Ct.  CI. 

■'  Rev.  Stat.  |  1071.  377  ;  Baird  o.  United  States,  5  Ct.  CI. 

■^  United  States   v.  Insurance  Com-  348  ;  s.    c,  8    Ct.    CI.  13  ;     Monk  v. 

panics,  22  Wall.  99  ;  Carlisle  v.  United  United  States,  12  Ct.  CI.  293  ;  Mor- 

States,  16  Wall.  147.  ^an  v.  United  States,  14  Ct.  CI.  442  ; 

*  Rev.  Stat,  g  1072.     For  form  of  Noble   v.   United    States,  Dev.  C.  C. 

petitions  see  post,  Form  No.  266.  134. 

■'  Merchants'  Exchano;e  Co.  v.  United 


360  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

exacted  by  some  agent  or  officer  of  the  government  as  duties,  it 
should  aver  that  a  protest  was  made  as  required  by  law;*  and  if 
the  claim  is  founded 'upon  an  act  of  Congress,  the  act  should  be 
referred  to  in  the  petition.  If  the  petition  on  its  face  shows  that  the 
claim  first  accrued  more  than  six  years  before  it  was  filed,  it  should 
set  forth  at  least  one  of  the  legal  disabilities  mentioned  in  the 
statute  as  a  bar  to  the  operation  of  the  statute,  and  further  show 
that  it  was  filed  within  three  years  after  such  disability  was  removed.^ 

The  petition  should  further  state  the  aftiount  for  which  the  claim- 
ant demands  judgment  or  the  relief  which  he  claims.  And  as  we 
have  observed,  it  was  formerly  required  that  the  plaintiff,  whether 
a  citizen  or  an  alien,  should  state  that  he  has  not  in  any  way  volun- 
tarily aided,  abetted  or  given  encouragement  to  rebellion  against  the 
government  of  the  United  States  ;^  or  if  so,  that  he  has  been  legally 
and  fully  pardoned  for  such  participation  in  the  rebellion  by  the  Pres- 
ident of  the  United  States.*   For  form  of  petition  see  post,  No.  268. 

§  430.  Parties. — A  corporation  may  be  a  claimant ;  and  where  a 
corporation  was  created  in  an  insurrectionary  state  during  the  rebel- 
lion, with  no  purpose  hostile  to  the  United  States,  nor  in  conflict 
with  the  Constitution,  it  Avas  held  that  such  corporation  might 
prosecute  an  action  in  the  Court  of  Claims  under  the  "  captured 
and  abandoned  property  act."^  So  a  feme  covert  may  prosecute  a 
claim  in  her  own  name  where  her  husband  refuses  to  join  her,  if 
the  laws  of  the  state  where  she  has  her  domicile  allow  her  to  sue 
under  such  circumstances.^  So  a  principal  may  sue  on  a  contract 
made  by  an  agent  in  his  own  name  and  without  disclosing  his  prin- 
cipal.'^ And  if  a  guardian  is  appointed  in  one  state  and  an  executrix 
in  another,  the  former  may  file  a  petition  for  his  ward  if  he  is  ap- 
pointed in  the  state  where  the  ward  has  his  domicile.^ 

If  there  are  two  parties  interested  in  a  contract  on  which  the 
claim  against  the  government  is  based,  one  may  prosecute  the  claim 
although  the  other  is  disqualified  by  disloyalty.^     But  in  such  a 

^  Schlesinger  v.  United  States,  1  Ct.  ^  United   States  v.  Insurance  Com- 

Cl.  16;  NicoU  V.  United  States,  1  Ct.  panics,  22  Wall.  99. 

CI.  70.  ^  Stanton  v.  United  States,  4  Ct.  CI. 

•^  Kendal  v.   United  States,   14  Ct.  456.     See  also  Meriwether  v.  United 

CI.  122  ;  Same  v.  Same,  14  Ct.  CI.  374.  States,  13  Ct.  CI.  259. 

^  Patterson  i\  United  States.  6  Ct.  CI.  '  llamsdell  w.  United  States,  2  Ct. 

60;  Hill   V.  United  States,   8  Ct.  CI.  CI.  508. 

470.  *  Stanton  v.  United  States,  4  Ct.  CI. 

*  Pargond  v.  United  States,  13  AVall.  456. 

156  ;  s.  c,  4  Ct.  CI.  337.  »  United  States  v.  Burns,  12  Wall. 


COURT    OF    CLAIMS.  361 

case  the  claimant  must  show  the  extent  of  his  interest,  and  can  only 
recover  to  that  extent.^  And  where  the  claimants  were  partners,  it 
was  held  that  the  disloyalty  of  one  would  defeat  the  action,  if  there 
was  no  means  of  determining  the  individual  interest  of  each  in  the 
claim  made.^  As  a  general  rule  all  persons  who  have  a  joint  inter- 
est in  the  claim  should  join  in  the  petition  ;  but  if  several  parties 
have  separate  interests  in  the  same,  they  cannot  properly  join  in 
one  petition.  Thus,  where  two  separate  firms  have  separate  claims 
they  cannot  unite  and  file  a  petition  therefor.^ 

§  431.  Choses  in  action. — It  seems  that  the  general  principle  of 
the  common  law  in  reference  to  assignments  of  choses  in  action  are 
followed  in  this  court.  If  the  claim  assigned  is  a  chose  in  action, 
suit  may  be  prosecuted  in  the  name  of  the  assignor  for  the  benefit 
of  the  assignee,  if  the  assignor  is  connected  with  the  case,  which 
may  be  shown  by  his  verification  of  the  petition  or  by  proof  of  the 
transfer.*  And  if  an  assignment  is  made  for  the  benefit  of  creditors, 
the  assignee  may  prosecute  the  suit  in  the  name  of  the  assignor.^ 

§  432.  Pleading,  practice  and  procedure. — The  general  rules  of 
common  law  relating  to  pleading  are  required  to  be  observed  in  the 
Court  of  Claims,  although  the  proceedings  will  not  be  regulated  by 
the  exact  rules  of  special  pleading.  The  substance  of  matters  will  be 
regarded  rather  than  forms  and  technicalities.^  If  a  petition  is  not 
verified,  a  motion  may  be  made  to  dismiss  it  \'^  and  if  the  petition 
does  not  show  a  right  to  recover,  or  that  the  court  has  jurisdiction 
of  the.  cause,  this  may  be  taken  advantage  of  by  demurrer.  If  the 
petition  is  satisfactory  in  these  respects,  the  objection  to  the  juris- 
diction of  the  court  may  be  taken  by  plea.^  But  a  plea  to  the 
jurisdiction  will  not  be  allowed  after  a  traverse,  without  leave  of 
the  court.^     If  the  United  States  file  a  general  traverse  to  a  petition 

246  ;s.   c,  4  Ct.    CI.    113;     Fain    v.  ^  Morgan  «.  United  States,  14  Ct.  CI. 

United  States,  4  Ct.  CI.  237  ;  Mildrim  319. 

w.. United  States,  7  Ct.  CI.  595.  «  Pierce  v.  United  States,  1  Ct.  CI. 

^  Headman  v.  United  States,  5  Ct.  195;    Benton  v.  United  States,  5   Id. 

CI.  640.  692 ;    Baird  v.   United  States,  8  Id. 

^  Schreiner  v.  United  States,  6  Ct.  13. 

CI.  359.  7  Griffin  „_  United  States,  13  Ct.  CI. 

^  Wilson  V.  United  States,  1  Ct.  CI.  257. 

318;  Parish    i>.  United   States,   1    Ct.  ^  Pennsylvania  Co.  v.  United  States, 

CI.  345.  7  Ct.  CI.  4U1  ;  Graham  v.  United  States, 

*  Jackson  v.  United  States,  1  Ct.  CI.  1  Id.  183  ;  Pierce  v.  United  States,  Id. 

260;    Crowell  v.  .Jackson,   6  Id.  23;  195. 

Silverhill    c.    United    States,    5    Id.  ^  Id. 
610. 


362 


FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 


that  is  not  verified,  they  thereby  waive  a  want  of  verification  ;^  and 
if  they  do  not  traverse  an  allegation  of  loyalty,  it  will  be  presumed 
to  be  true.^  If  a  corporation  is  claimant,  and  it  is  averred  in  the 
petition  that  it  was  duly  created  a  corporation,  its  incorporation 
need  not  be  proved,  unless  this  allegation  is  specially  traversed  ^ 


1  Griffin  v.  United  States,  13  Ct.  CI. 
257. 

-  Hill  V.  United  States,  8  Ct.  CI.  470. 

^  Hebrew  Conjrre^ration  v.  United 
States,  6  Ct.  CI.  241  ;  United  States  v. 
Insurance  Companies,   22    Wall.    99. 

The  followinif  observations  are  made 
in  the  monoj^raph  of  Jadi>;e  Richard- 
son, before  referred  to,  in  relation  to 
the  practice  in  this  court: 

"  All  cases  are  tried  in  the  Court  of 
Claims  with  the  same  formalities  as 
are  cases  between  individual  litiu;ants 
in  the  courts  of  common  law  as  to  the 
admissibility  of  evidence,  the  exam- 
ination and  cross-examination  of  wit- 
nesses, and  the  application  of  lethal 
principles,  and  the  rijihts  of  claimants 
are  guarded  and  protected  by  the  es- 
tablished rules  of  law  as  administered 
in  other  courts. 

"  The  procedure  and  practice  have 
been  impi'oved  and  simplified  by  Con- 
gressional enactments  and  by  the 
rules  adopted  by  the  court  from  time 
to  time,  as  suggested  in  the  course  of 
its  experience  of  more  than  twenty- 
six  year's,  until  a  system  has  grown 
up  and  become  established  of  the  ut- 
most convenience  to  parties  and  coun- 
sel, wherever  they  may  reside. 

"  Claimants  must  file  their  petitions 
properly  setting  out  their  cases,  and 
must  prove  their  claims  by  competent 
evidence.  But  as  the  court  is  held  at 
Washington,  and  has  jurisdiction  of 
cases  which  arise  in  distant  and  dif- 
ferent parts  of  the  country,  Congress 
has  provided  that '  the  testimony  shall 
be  taken  in  the  county  where  the  wit- 
ness resides,  when  the  same  can  be 
conveniently  done.' 

"When,  therefore, "a  claimant  has 
filed  his  petition,  which  he  may  do  by 
sending  it  to  the  clerk  of  the  court 
by  mail  or  otherwise,  he  may,  at  his 
leisure  and  convenience,  go  on  taking 
the  depositions  of  witnesses  whenever 
and  wherever  he  can  find  them,  first 
giving  notice  to  the  Attorney-General, 


that  he  may  be  present  himself,  or 
by  an  assistant,  to  cross-examine 
them. 

"  The  court  is  authorized  by  law  to 
call  upon  any  of  the  departments  for 
any  information  or  papers  it  may 
deem  necessary,  and  it  always  does 
so  in  proper  cases  on  motion  of  claim- 
ants ;  and  thus  they  can  readily  ob- 
tain whatever  information  and  evi- 
dence affecting  the  issues  involved  are 
contained  in  the  archives  of  the 
government. 

"  Parties  filing  petitions,  pleadings 
and  motions,  except  motions  for  calls 
on  the  departments,  are  required  by 
the  rules  to  leave  with  the  clerk  at 
the  same  time  written  notice  thereof, 
addressed  to  the  attorney  of  the  ad- 
verse party,  with  postage  prepaid, 
and  the  clerk  is  required  to  mail  the 
same,  and  to  note  the  fact  on  the 
general  docket ;.  and  all  notices  may 
be  served  in  the  same  manner.  Printed 
blanks  are  furnished  to  parties  for 
this  purpose.  Upon  the  receipt  by  the 
clerk  of  an  answer  to  a  call  upon  a 
department,  he  is  required  also  to 
notify  the  claimant's  counsel  and  At- 
torney-General of  the  fact  by  mail.  ^ 
By  these  rules  attorneys  in  any  place, 
however  distant  from  Washington,  are 
informed  at  once,  and  therefore  al- 
ways know  of  every  paper  filed  in 
their  cases  without  being  obliged  to 
watch  the  state  of  the  clerk's  docket. 

"  When  the  claimant  has  closed  his 
proof,  he  may  give  notice  to  the  At- 
torney-General to  that  effect,  by  an 
entry  in  the  notice  book  in  the  clerk's 
office.  In  two  months  thereafter,  un- 
less the  Attorney-General  asks  for 
further  time,  the  claimant  may  have 
his  case  placed  on  the  trial  list. 

"  Before  a  case  is  placed  on  the  trial 
list,  however,  the  claimant  must  file 
in  the  clerk's  office  twenty-five  printed 
copies  of  his  brief  and  his  proposed 
findings  of  fact,  and  the  Attorney- 
General  has  one  month  thereafter  in 


COURT    OF    CLAIMS. 


3t)3 


For  forms  of  pleadings   in  this  court,  see  post,  under  head  of 
"Forms  for  the  Court  of  Claims." 


which  to  file  a  brief  and  request  for 
findings  of  fact  on  his  part. 

"  If  counsel  live  at  a  distance,  the 
court  will,  on  application,  assii^n  a 
day  certain  for  the  hearinc;  of  his 
case,  so  that  he  need  not  be  detained, 
as  he  may  be  in  other  courts,  awaiting 
his  turn  •,  or  he  may  file  his  request 
for  findings  of  fact,  briefs  and  argu- 
ment by  forwarding  them  to  the  clerk 
b}"^  mail,  and  thus  he  may  be  relieved 
from  going  to  Washington  at  all  during 
the  progress  of  the  case,  from  begin- 
ning to  end  of  the  proceedings. 

"  No  fees  or  costs  are  taxed  or  al- 
lowed by  the  court,  and  if  the  claim- 
ant loses  his  case  he  is  not  subjected 
to  a  bill  of  cost.  Of  course,  parties 
must  pay  for  the  taking  of  the  depo- 
sitions which  they  themselves  require 
in  establishing  their  claims,  but  if  de- 
feated they  are  not  required  to  pay 
for  the  depositions  of  tlieir  adversa- 
ries. 

"  The  evidence  is  printed  at  the 
government  printing  office,  and  that 
and  all  other  documents  in  each  case 
are  made  into  records  i'or  the  use  of 
the  court  and  the  parties. 

"  The  court  has  no  jury.  All  ques- 
tions of  law  and  of  fact  are  submitted 
to  the  five  judges,  and  each  judge 
reads  over  the  whole  record,  so  that 
there  is  not  the  same  necessity  for 
oral  arguments  as  in  the  common  law 
courts. 

"  There  is  a  provision  still  standing 
in  the  Revised  Statutes,  in  terms  ap- 
plying to  all  cases  in  the  court,  requir- 
ing claimants  to  set  forth  in  their 
petitions,  and  to  prove  affirmatively, 
that  they  have  at  all  times  borne  true 
faith  and  allegiance  to  the  government 
and  have  not  voluntarily  aided,  abet- 
ted or  given  encouragement  to  rebel- 
lion. But  since  the  decision  of  the 
Supreme  Court  in  relation  to  a  similar 
clause  in  the  captured  and  abandoned 
property  act,  which  has  been  herein- 
before referred  to,  declaring  the  con- 
stitutional efl'ect  of  the  proclamation 
of  general  pardon  and  amnesty  issued 
by  the  President  in  December,  1868, 
to  be  the  relief  of  all   persons  from 


such  a  restriction  upon  their  rights, 
the  practice  has  been  not  to  require 
an  allegation  of  lo^'alty  in  the  peti- 
tion, or  proof  of  it  at  the  trial. 

"  The  defence  of  all  claims  is  con- 
fided by  law  to  the  Attorney-General, 
who  assigns  one  of  the  assistant  attor- 
neys-general, with  an  adequate  num- 
ber of  assistants,  to  that  special  duty 
under  his  own  supervision,  and  who 
occasionally  makes  the  argument  him- 
self in  cases  of  unusual  importance 
and  magnitude.  The  rights  and  in- 
terests of  the  United  States  arc  there- 
fore ably  and  amply  protected.  In- 
deed, in  two  particulars,  the  United 
States  are  greatly  favoi-ed  in  their 
defences  by  provisions  of  law  which 
do  not  apply  in  any  other  courts.  No 
claimant,  nor  any  person  from  or 
through  whom  any  such  claimant  de- 
rives his  alleged  title,  claim  or  right, 
nor  any  person  interested  in  any  such 
title,  claim  or  right,  is  a  competent 
witness  in  supporting  the  same,  while 
ail  such  persons  may  be  witnesses  to 
defeat  them.  Cases  against  the  Dis- 
trict of  Columbia  and  some  cases 
specially  referred  to  the  court  are  ex- 
pressly exempted  by  law  from  this 
provision. 

"  At  any  time  within  two  years  next 
after  the  final  disposition  of  any  claim, 
on  motion  made  in  behalf  of  the 
United  States,  the  court  may  grant  a 
new  trial  and  stay  the  payment  of 
any  judgment  therein,  upon  such  evi- 
dence, cumulative  or  otherwise,  as 
shall  satisfy  the  court  that  any  fraud, 
wrong  or  injustice  in  the  premises 
has  l)een  done  to  the  United  States  ; 
and  this  may  be  done  while  an  appeal 
is  pending  in  the  Supreme  Court,  or 
after  the  judgment  has  been  affirmed 
by  that  court,  or  even  after  it  has  been 
paid  at  the  treasury.  But  new  trials 
on  motion  of  claimants  can  only  be 
granted  for  the  same  reasons  which, 
by  the  rules  of  common  law  or  chan- 
cery, in  suits  between  individuals, 
would  furnish  sufficient  ground  for 
new  trials,  and  every  such  motion 
must  be  made  at  the  term  in  which 
judgment  is  rendered,  and  before  the 


364 


FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 


§  433.  The  petition  may  be  amended. — Great  liberality  is  ex- 
tended by  this  court  in  allowing  amendments.  If  a  petition  is 
defective  in  its  averments  it  may  be  amended ;  but  not  without 

Supreme  Court  upon  the  following 
record,  and  none  other: 

"  '  1.  A  transcript  of  the  pleadings 
in  the  case,  of  the  final  judgment  or 
decree  of  the  court,  and  of  such  in- 
terlocutory orders,  rulings,  judgments 
and  decrees  as  may  be  necessary  to  a 
proper  review  of  the  case: 

"  '  2.  A  finding  by  the  Court  of 
Claims  of  the  facts  in  the  case,  estab- 
lished by  the  evidence,  in  the  nature 
of  a  special  verdict,  but  not  the  evi- 
dence establishing  them  ;  and  a  sep- 
arate statement  of  the  conclusions  of 
law  upon  said  facts  on  which  the 
court  founds  its  judgment  or  decree. 
The  finding  of  facts  and  conclusions 
of  law  to  be  certified  to  this  court  as 
part  of  the  record.  • 

"  '  3.  In  all  cases  an  order  of  allow- 
ance of  appeal  by  the  Court  of  Claims, 
or  the  chief  justice  thereof  in  vaca- 
tion, is  essential,  and  the  limitation 
of  time  for  granting  such  appeal  shall 
cease  to  run  fi-om  the  time  an  appli- 
cation is  made  for  the  allowance  of 
appeal. 

"  '  4.  In  all  cases  in  which  either 
party  is  entitled  to  appeal  to  the  Su- 
preme Court,  the  Court  of  Claims 
shall  make  and  file  their  findings  of 
facts  and  their  conclusions  of  law 
therein,  in  open  court,  before  or  at 
the  time  they  enter  judgment  in  the 
case. 

"  '  5.  In  every  such  case,  each  party, 
at  such  time  before  trial,  and  in  such 
form  as  the  court  may  prescribe,  shall 
submit  to  it  a  request  to  find  all  the 
facts  which  the  party  considers  proven 
and  deems  material  to  the  due  pres- 
entation of  the  case  in  the  findings  of 
fact.' 

"  The  practice  now  is  for  the  Court 
of  Claims,  after  hearing  or  reading, 
as  the  case  may  be,  the  arguments  of 
counsel  on  both  sides,  and  after  each 
judge  has  thoroughly  read  over  the 
whole  record  by  himself,  and  consid- 
ered the  requests  of  the  opposite 
parties,  to  draw  up  findings  of  fact. 
It  is  easy  to  see  that  the  duties  of  the 
judges  in  this  respect,  and  in  coming 


commencement  of  the  summer  vaca- 
tion. 

*'  Moreover,  it  is  expressly  provided 
by  statute  that  any  person  who  cor- 
ruptly practices  or  attempts  to  prac- 
tice any  fraud  against  the  United 
States  in  the  proof,  statement,  estab- 
lishment or  allowance  of  any  claim, 
or  any  part  of  any  claim,  shall,  ipso 
J'acto,  forfeit  the  same  to  the  govern- 
ment; and  it  is  made  the  duty  of  the 
court,  in  such  cases,  to  find  specifically 
that  such  fraud  was  practiced  or  at- 
tempted, and  to  give  judgment  that 
the  claim  is  forfeited,  and  that  the 
claimant  be  forever  barred  from  pros- 
ecuting the  same. 

"  The  first  appeal  case  which  went 
to  the  Supreme  Court  was  sent  up 
with  a  full  copy  of  the  whole  record, 
evidence  and  all,  just  as  all  cases  had 
been  previously  reported  to  Congress 
under  the  former  law.  But  that  case 
was  dismissed  for  want  of  jurisdiction 
in  that  court  to  hear  appeals  from  the 
Court  of  Claims,  by  reason  of  the  sec- 
tion which  gives  a  revisory  power  to 
the  Secretary  of  the  Treasury  to  review 
its  judgments,  as  has  been  already 
stated.  When  that  section  was  re- 
petaled,  and  the  Supreme  Court  sus- 
tained the  appellate  jurisdiction  con- 
fei-red  by  other  provisions  of  the  act, 
they  foresaw  that  with  the  whole 
records  sent  up  they  would  encounter 
the  same  difiiculty  which  Congress 
had  experienced — the  utter  impossi- 
bility of  devoting  sufficient  time  to 
the  consideration  of  such  a  mass  of 
evidence,  and  of  undertaking  to  re- 
view the  findings  of  fact  thereon. 
Therefore,  in  the  year  1866,  under  the 
act  of  March  3,  1863,  they  wisely 
made  rules  requiring  the  Court  of 
Claims  to  find  the  facts,  and  confining 
the  hearing  on  appeal  to  the  questions 
of  law  raised  thei'eon.  These  rules, 
as  subsequently  modified,  now  stand 
as  follows : 

'' '  In  all  cases  hereafter  decided  in 
the  Court  of  Claims  in  which,  by  the 
act  of  Congress,  such  appeals  are  al- 
lowable, they  shall  be  heard  in  the 


COURT    OF    CLAIMS. 


305 


leave  of  the  court. ^  Thus  if  a  petition  is  not  verified  it  may  be 
amended  in  this  respect.^  So  a  petition  may  be  so  amended  as  to 
show  that  another  party  has  an  interest  in  the  claim,  or  where 
there  are  joint  owners  of  property  on  which  the  claim  is  based  an 
amendment  of  the  petition  will  be  allowed  to  enable  the  claimants 
to  sever  in  the  prayer  for  relief,  and  to  ask  for  separate  judgments.^ 
So  an  amendment  will  be  allowed  to  sustain  and  protect  the  orig- 
inal cause  of  action,  as  by  allowing  an  administrator  to  take  the 
place  of  a  guardian  of  the  deceased,  and  the  husband  the  place 
of  the  wife  in  certain  cases.'*  So  if  two  joined  in  a  petition  for  a 
claim  and  only  one  is  entitled  to  recover,  the  petition  may  be 
amended  by  striking  out  the  name  of  the  disinterested  party. ^ 

§  434.  Consolidation  and  intervention. — If  the  assignees  of 
vouchers  issued  under  the  same  contract  bring  suits  separately  in 
the  name  of  the  assignor,  the  suits  may  be  consolidated.''     So  if 


to  an  agreement  on  each  one  of  the 
facts  which  are  considered  material, 
often  very  numerous,  as  well  as  in  re- 
ducing to  concise  written  statements 
the  facts  agreed  upon  by  them,  are 
laborious,  difficult  and  perplexing. 
But  all  that  has  to  be  done,  and  is 
done.  Upon  the  findings  of  fact  thus 
drawn  up  the  court  applies  the  law, 
delivers  opinions,  and  enters  judg- 
ments in  accordance  therewith.  The 
concurrence  of  three  judges  is  made 
necessary  by  statute  to  the  rendition 
of  any  judgment. 

"  If  thejudgment  is  against  a  claim- 
ant in  any  case  where  the  amount  in 
controversy  exceeds  three  thousand 
dollars,  he  may,  within  ninety  days 
thereafter,  appeal  to  the  Supreme 
Court  on  the  law.  The  United  States 
may  appeal  in  like  manner  from  any 
judgment  adverse  to  the  government 
without  reference  to  the  amount  in 
controversy.  Before  the  passage  of 
the  Revised  Statutes  the  United  States 
could  not  appeal  in  cases  involving 
less  than  three  thousand  dollars, 
unless  the  chief  justice  certified  that 
thejudgment  or  decree  would  affect 
a  class  of  cases,  or  furnish  a  precedent 
for  future  action  of  an  executive  de- 
partment of  the  government  in  the 
adjustment  of  such  class  of  cases,  or 
a  constitutional  question.  But  this 
restriction  on  the  right  of  appeal  by 


the  defendants  was  omitted  from  the 
Revised  Statutes,  apparently  by  mis- 
take, and  since  then  several  appeals 
have  been  taken  on  the  part  of  the 
United  States  in  cases  involving  small 
amounts,  without  such  certificate,  al- 
though probably  they  did,  in  fact, 
belong  to  a  class  of  cases  pending  in 
the  departments.  There  are  other 
provisions  in  the  law  and  the  rules  of 
the  court  in  relation  to  the  details  of 
practice  which  do  not  require  partic- 
ular mention." 

^  Jones  V.  United  States,  1  Ct.  CI. 
383 ;  Shaw  v.  United  States,  9  Ct.  CI. 
301  ;  Griffin  v.  United  States,  13  Ct. 
CI.  257. 

^  Id. ;  Cross  v.  United  States,  14 
Wall.  479  ;  s.  c,  5  Ct.  CI.  88. 

3  Mott  V.  United  States,  3  Ct.  CI.  218. 

*  Bellocque  v.  United  States,  8  Ct. 
CI.  493. 

*  Molina  v.  United  States,  6  Ct.  CI. 
269.  So,  if  husband  and  wife  are 
joined  as  claimants,  and  he  alone  is 
entitled  to  the  claim,  her  name  may  be 
stricken  from  the  petition  :  Benton  v. 
United  States,  5  Ct.  CI.  692.  So  also, 
where  a  feme  covert  and  husband  sue, 
and  he  dies,  she  may  prosecute  the 
suit  alone,  if  the  claim  belongs  to 
her :  Rodden  v.  United  States,  6  Ct. 
CI.  308. 

8  Crowell  V.  United  States,  6  Ct.  CI. 
23. 


366  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

the  goods  of  several  owners  become  commingled,  the  claims  of  the 
several  claimants  therefor  may  be  consolidated,  and  they  be  per- 
mitted to  litigate  with  each  other.^ 

If  one  claims  money  in  the  court,  which  is  also  claimed  by  an- 
other, the  former  may  file  a  petition  of  intervention  in  the  case  ;^ 
and  if  there  are  several  claimants  of  the  same  fund  in  court,  and 
they  intervene  or  are  united  with  the  original  claimant,  the  latter 
will  be  first  required  to  make  out  a  case  only  against  the  United 
States,  after  which  the  others  will  be  permitted  to  establish  their 
rio-hts  as  against  the  original  claimant.^ 

§  435.  When  a  cause  -will  be  remanded  for  further  proof.  —  li 
there  is  omission  to  furnish  certain  proof  which  can  be  readily 
supplied,  the  cause  will  be  remanded  for  further  proof,  even  after 
a  hearing.*  And  where  it  appears  on  a  hearing  of  a  cause  that 
there  are  documents  which  have  been  introduced  as  evidence  in  the 
case  that  are  not  competent  evidence,  it  may  be  remanded  to  give 
the  parties  an  opportunity  to  furnish  competent  evidence  or  make 
some  stipulation  concerning  the  matter.^  But  a  cause  will  not  be 
remanded  for  further  prx)of,  so  as  to  enable  either  party  to  furnish 
additional  evidence  to  make  his  side  of  the  case  appear  plainer,  where 
there  has  been  only  a  conflict  of  evidence.^  When  a  cause  is  re- 
manded for  further  proof  either  party  may  re-examine  a  witness 
whose  testimony  has  already  been  taken,  and  either  party  may  take 
further  testimony ;  as  every  issue  is  open  to  controversy  on  the 
second  trial.'' 

§  436.  Burden  of  proof  of  loyalty  ;  -when  the  petition  -will  be  dis- 
missed.— The  allegations  of  the  petition,  as  to  true  allegiance  and 
not  voluntarily  aiding  and  abetting  or  giving  encouragement  to  the 
rebellion  against  the  government,  may  be  traversed  by  the  govern- 
ment, and  if  on  the  trial  such  issues  shall  be  decided  against  the 
claimant,  his  petition  must  be  dismissed  unless  he  is  within  the 

1  United  States  v.  Raymond,  92  U.  CI.  23  ;  Mahan  v.  United  States,  6  Ct. 
S.  651 :  WoodrufiF  v.  United  States,  4  CI.  831  ;  Fendall  v.  United  States,  12 
Ct.  CI.  486.  Ct.  CI.  305. 

2  Mezicx  V.  United  States,  6  Ct.  CI.  ^  Lender  v.  United  States,  5  Ct.  CI. 
232;  Turner  v.  United   States,  2  Ct.  544. 

CI.  390.  *  Crowell  v.  United  States,  6  Ct.  CI. 

^  Woodruff  v.-  United   States,  4  Ct.  23.      See  also  Shrewsbury  v.  United 

CI.  486  ;  Boyd  v.  United  States,  9  Ct.  States,  13  Ct.  CI.  183. 

CI.  419.  '  Culleton  v.  United  States,  5  Ct. 

^  Daniels  v.  United  States,  5  Ct.  CI.  CI.  627  ;    Gaither  v.  United   States,  3 

65 ;  Crowell  v.  United  States,  6  Ct.  Ct.  CI.  191. 


COURT    OF    CLAIMS.  367 

provisions  of  the  proclamation  of  general  pardon.^  The  claimant 
in  all  such  cases,  as  we  have  stated,  has  until  recently  been  required  to 
prove  aflfirraatively  that  the  person  or  persons  upon  whose  loyalty 
his  claim  depends  did  consistently  adhere  to  the  United  States  and 
give  no  aid  or  comfort  to  persons  engaged  in  the  rebellion ;  and  the 
voluntary  residence  of  any  such  person  in  any  place  where  the 
rebel  force  or  organization  held  sway  was  by  statute  made  prima 
facie  evidence  that  such  person  did  give  aid  and  comfort  to  said 
rebellion  and  to  the  persons  engaged  therein.^ 

§  437.  Aid  and  comfort  to  the  rebellion  must  have  been 
voluntarily  given. — The  Statute  last  cited  did  essentially  change 
the  proof  required  by  previous  ones.^  Any  voluntary  acts  which 
tend  to  assist,  countenance,  abet  or  encourage  the  rebellion  or 
persons  engaged  in  the  rebellion,  done  or  committed  by  the  claimant 
with  the  intention  and  for  the  purpose  of  aiding  the  rebellion  or 
of  promoting  its  power  and  success,  would  defeat  his  claim.*  But 
it  is  not  sufficient  to  show  a  purpose  to  give  aid  and  comfort :  the 
aid  and  comfort  must  have  been  actually  given. ^  And  acts  of  affec- 
tion or  humanity  rendered  to  persons  engaged  in  the  rebellion,  or 
contributions  and  taxes  paid  where  the  rebel  authority  had  sway, 
but  extorted  by  a  force  and  power  that  could  compel  submission,  do 
not  constitute  aid  and  comfort  to  the  enemy  within  the  meaning  of 
the  statute. *" 

Where  an  administrator  claimed  property  held  by  him  as  admin- 
istrator, and  which  was  taken  from  him  as  captured  or  abandoned, 
it  was  held  that  a  right  to  recover  the  proceeds  of  the  same  would 
depend  upon  his  loyalty  and  not  upon  that  of  the  decedent  or  of 
the  distributees.''  If  the  claimant  is  a  mere  trustee,  his  right  to 
recover  for  the  benefit  of  the  beneficiaries  does  not  depend  upon 
his  loyalty,  but  that  of  the  beneficiaries  entitled  to  the  claim.^ 

§  438.  The  effect  of  a  pardon  and  amnesty  ;  burden  of  proof. — 
The  proclamation  of  pardon  and  amnesty  is  a  complete  exemption 

1  Rev.  Stat.  ?  1073.  ^  Yi\\\  v.  United   States,  8   Ct.   CI- 

2  Rev.  Stat.  1 1U74, 15  U.  S.  Stat.  75.     470. 

'  United  States  v.  Padelfovd,  9  AVall.  *  Grossmeyer  v.  United  States,  4  Ct. 

531;  Grossmeyer  v.  United  States,  4  CI.  1. 

Ct.  CI.  1.  7  Carroll  v.  United  States,  13  Wall. 

*  Bond  V.  United  States,   2  Ct.  CI.  351  ;  s.  c,  5  Ct.  CI.  620 ;  Carroll   v. 

528 ;  Bates  v.  United  States,  4  Ct.  CI.  United  States,  7  Ct.  CI.  589. 

569  ;    United    States   v.  Padelford,  9  ^  Stoddart  v.  United  States,  6  Ct.  CI. 

Wall.'   531 ;     Grossmeyer    v.    United  340. 
States,  4  Ct.  CI.  1. 


368  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

of  a  claimant  from  disability  growing  out  of  giving  "aid  and  com- 
fort to  the  rebellion,"  if  he  took  the  oath  of  amnesty  required  by 
the  terms  of  the  President's  proclamation.  The  pardon  and  oath 
blots  out  the  offence,  and  on  proof  of  these  no  proof  will  be  required 
that  he  was  loyal  during  the  rebellion.' 

If  a  claimant  resided  during  the  rebellion  where  th6  rebel  force 
held  sway,  and  has  not  obtained  a  pardon,  the  burden  of  proof  is 
upon  him  to  show  his  loyalty  to  the  government  during  the  rebellion.^ 

In  case  of  an  alien,  it  is  not  essential  for  him  to  show  that  he 
during  the  rebellion  adhered  to  the  United  States,  but  it  will  be 
enough  to  show  that  he  observed  a  strictly  neutral  course  through 
the  war,  and  gave  no  aid  or  comfort  to  the  rebellion.^  Residence 
of  an  alien  in  a  foreign  country  during  the  war  of  the  rebellion 
raises  a  presumption  of  neutrality.^  So  it  has  been  held  that  there 
is  a  presumption  of  loyalty  in  favor  of  a  person  who  was  a  citizen 
and  resident  of  a  loyal  state  during  such  war;*  and  that  very 
slight  evidence  suffices  to  establish  the  loyalty  of  a  colored  person 
residing  within  a  rebellious  state  during  the  war.^ 

§  439.  Acts  of  aid  and  comfort  to  the  rebellion. — Where  a  person 
was  voluntarily  connected  with  the  violation  of  the  blockade  laws ; 
and  where  a  person  sold  goods  to  an  agent  of  the  rebellious  govern- 
ment who  bought  them  to  aid  the  rebellion  ;  and  where  a  person  became 
surety  on  the  official  bond  of  an  officer  in  the  military  service  of  the 
rebels ;  and  where  a  person  entered  the  military  service  of  the  re- 
bellious states,  which  he  could  have  avoided ;  these  parties  were 
respectively  held  to  have  given  aid  and  comfort  to  the  rebellion.'^ 

§  440.  The  court  may  appoint  commissioners  to  take  testimony. — 
There  is  conferred  upon  the  Court  of  Claims  power  to  appoint  com- 

»  Carlisle  v.  United  States,  16  Wall.  ^  Turner   v.    United    States,    3   Ct. 

147:  Armstrong  v.  United  States,  13  CI.  400. 

"Wall.  154:  s.  c,  5  Ct.  CI.  623;  United  «  Thomas    v.   United    States,  3  Ct. 

States  V.  Padelford,  9  Wall.  53  ;  s.  c,  4  CI.  52  ;  Dereef  v.  United  States,  3  Ct. 

Ct.  CI.  316  ;  United  States   v.   Klein,  CI.  163. 

]3  Wall.  128;    s.  c,  4  Ct.   CI.   559;  'Bates  v.  United  States,  4  Ct.  CI. 

Hamilton  v.  United  States,  7  Ct.  CI.  569 ;    Carlisle    v.   United    States,  16 

444;  Backer  r.  United  States,  7  Ct.  CI.  Wall.  147;    United    States  v.   Padel- 

551.  ford,  9  Wall.  531  ;    Kuper  v.  United 

-  United  States  v.  Burns,  12  AVall.  States,  3  Ct.  CI.  74.      But   where   a 

246  :  s.  c,  4  Ct.  CI.  113  ;    Deerson  v.  party  became  interested  in  an  adven- 

United  States,  5  Ct.  CI.  626  ;  Deerson  ture  to  run  the  blockade,  it  was  held 

V.  United  States,  6  Ct.  CI.  227.  that  this  was  not  giving  aid  and  com- 

^  Rothschild  v.  United  States,  6  Ct.  fort  to  the  rebellion,  unless  the  adven- 

Cl.  204.  ture   was   put  afloat:    Hill  v.  United 

*  Hill  V.  United  States,  8  Ct.  CI.  470.  States,  8  Ct.  CI.  470. 


COURT    OF    CLAIMS.  S69 

missioners  to  take  testimony  to  be  used  in  the  investigation  of 
claims  which  come  before  it.  The  court  also  has  the  authority  to 
prescribe  the  fees  of  such  commissioners  for  the  taking  of  testimony, 
and  to  issue  commissions  for  the  taking  of  testimony,  whether  at 
the  instance  of  the  claimant  or  of  the  United  States.^ 

The  testimony  to  be  used  in  this  court  must  be  taken  by  depo- 
sition;^ and  ex  parte  affidavits  cannot  be  used  as  evidence,  although 
they  are  transmitted  to  the  court,  with  the  petition,  by  Congress.^ 

§  441.  Application  for  a  commission,  and  practice  thereon. — Ap- 
plication for  the  issue  of  a  commission  to  take  testimony  in  a  case 
may,  as  a  general  rule,  be  made  at  any  time  before  trial,  and  when 
made,  an  order  will  always  be  entered  by  the  clerk  therefor,  as  of 
course.*  But  if  the  issue  of  a  commission  and  the  taking  of  testi- 
mony, and  a  return  of  the  same,  will  require  a  postponement  of 
case,  the  court  may  determine  whether  it  should  issue  and  whether 
a  tristl  should  be  postponed  under  all  the  circumstances  of  the 
case.^ 

§  442.  Mode  of  taking  depositions. — The  depositions  of  witnesses 
should  be  written  out  in  the  usual  way,  with  questions  and  answers 
thereto  immediately  following,  under  oath.  They  should  be  read 
over  to  and  signed  by  each  witness  deposing,  and  must  state  that 
the  witness  testified  in  the  presence  of  all  the  parties.  And  if  an 
addition  is  made  after  the  attorney  of  one  of  the  parties  has  left,  it 
will  on  motion  be  stricken  out.^  The  commissioner  should  so  con- 
nect the  sheets  together  and  seal  them  that  they  cannot  be  removed 
or  tampered  with,  and  both  he  and  the  witness  should  place  their 
names  on  each  sheet  of  paper.''  For  forms,  consult  those  furnished 
for  circuit  court  commissioners.     See  j90s?;. 

§  443.  When  a  witness  may  be  re-examined. — Usually,  when  the 
right  to  examine  a  witness  has  been  exercised  it  is  exhausted,  and 
no  re-examination  of  the  witness  can  be  had  unless  by  leave  of  the 
court,  granted  on  a  proper  application  made  therefor.  If  a  party 
neglects  so  to  apply,  and  takes  a  second  deposition  of  the  same 

1  Rev.  Stat.  |  1075.  s  Atocha  v.  United  States,  6  Ct.  CI. 

^  Hughes  V.  United  States,  4  Ct.  CI.  95. 

64.  «  Martin  v.  United   States,  3  Ct.  CI. 

•^  Clark  V.  United  States,  1  Ct.  CI.  384 ;  Shrewsbury  v.  United  States,  9 

246  :  McKee  v.  United  States,  Id.  336  ;  Id.  333. 

Wilde  V.  United  States,  7  Id.  415.  '  Martin  v.  United  States,  3  Ct.  CI. 

*  Mahan  v.  United  States,  6  Ct.  CI.  384. 
331. 

24 


370  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

witness,  the  court  will  exercise  its  discretion  as  to  admitting  it  in 
evidence  on  the  trial,  if  it  is  objected  to.' 

§  444.  Objections,  how  and  when  taken. — Objections  to  parol 
evidence  of  the  contents  of  a  written  instrument  should  be  taken  at 
the  examination,  for  secondary  evidence  is  admissible  if  no  objection 
thereto  is  made;  and  so  objection  to  the  form  of  the  question,  as 
that  it  is  leading,  must  be  then  made,  as  even  leading  questions 
may  be  allowed,  and  especially  if  no  objection  is  made.  But  ob- 
jections which  relate  to  the  manner  and  form  of  taking  or  returning 
depositions  may  be  taken  at  any  time  before  a  hearing  of  the  case 
on  its  merits.^ 

§  445.  The  court  may  call  upon  any  of  the  departments  for  infor- 
mation; evidence  ;  witnesses. — This  court  has  authority  to  call 
upon  any  of  the  departments  for  any  information  or  papers  it  may 
deem  necessary,  and  is  entitled  to  the  use  of  all  recorded  and 
printed  reports  made  by  the  committee  of  each  house  of  Congress 
when  deemed  necessary  in  the  prosecution  of  its  business.  But  the 
head  of  a  department  of  the  government  may  refuse  to  comply 
with  such  request  if  in  his  opinion  a  compliance  would  be  injurious 
to  the  public  interest.^  And  if  it  appears  to  the  court  that  the 
facts  set  forth  in  a  petition  do  not  furnish  ground  for  relief,  the 
court  should  refuse  to  allow  the  taking  of  testimony.*  No  witness 
can  be  excluded  in  any  suit  in  the  Court  of  Claims  on  account  of 
color.^  But  no  claimant  nor  any  person  from  or  through  whom  he 
derives  title,  claim  or  right  against  the  United  States,  nor  any 
person  interested  in  such  title,  claim  or  right,  is  a  competent  wit- 
ness in  this  court  to  support  the  same,  except  at  the  instance  of  the 
attorney  or  solicitor  appearing  in  behalf  of  the  United  States.® 

The  statutory  provision  we  have  noticed  excluding  as  witnesses 
those  having  an  interest  in  the  claim  against  the  government  is  the 
old  common  law  doctrine  as  it  stood  before  the  adoption  of  the  act 
of  Congress  of  July  16,  1862,  now  incorporated  into  section  858  of 

^  Maban  v.  United  States,  6  Ct.  CI.  to  the  contents  of  a  written  instru- 

331  ;    Sevier  v.  United    States,  7   Id.  ment,  then  objection    may   be  taken 

388,  in  which  it  was  held,  if  leave  was  after  the  return  of  the  deposition,  as 

given  to  re-examine  upon  a  particular  that  would  be  the  first  opportunity  to 

point,  the  witness  cannot  be  examined  object:  Id. 

on  other  matters.  ^  Rev.  Stat.  |  1076. 

2  Hughes  f.  United  States,  4  Ct.  CI.  *  Rev.  Stat.  ^  1077. 

64.     If  the  deposition  is  taken  upon  ^  Rev.  Stat.  |  1078. 

written  interrotcatories,  and  in  answer  *  Rev.  Stat.  ^  1079. 
to  a  qqcstion  the  witness  deposes  as 


COURT   OF   CLAIMS.  371 

the  Revised  Statutes.  The  latter  section  provides  that  no  witness 
shall  be  excluded  in  any  civil  action  because  he  is  a  party  or  inter- 
ested in  the  issue  to  be  tried,  except  in  certain  special  cases.^  But 
if  the  claim  is  against  the  United  States,  neither  the  claimant  can 
testify,  nor  the  assignor  of  a  claim  transferred  after  it  had  accrued 
to  him,  nor  any  one  who  is  interested  in  the  event  of  the  suit.^ 

But  ex  necessitate,  on  general  principles  of  evidences  in  such 
cases,  he  is  competent  to  prove  the  contents  of  a  lost  package, 
where  his  right,  title  and  claim  to  recover,  or  for  relief,  has  been 
clearly  established  by  other  competent  evidence.^ 

If  a  corporation  is  a  claimant,  the  trustees  of  the  corporation 
are  competent  witnesses,  as  they  are  not  supposed  to  be  interested.* 
So  where  a  party  sold  property  to  the  claimant,  and  it  was  afterwards 
captured  by  the  United  States,  the  former  was  held  to  be  a  competent 
witness  to  sustain  the  claim  therefor.*  So  if  a  witness  has  testified 
against  a  claim,  his  testimony  will  not  be  excluded,  however  mani- 
fest his  interest  may  be  in  the  claim.  Those  only  are  incompetent 
on  account  of  interest  who  have  an  interest  in  sustaining  the 
claim. ^ 

§  446.  "When  the  claimant  may  be  examined  as  a  -witness. — At 
the  instance  of  the  attorney  or  solicitor  appearing  on  behalf  of  the 
United  States,  the  court  may  make  an  order  in  any  case  pending 
therein,  directing  the  claimant  to  appear  upon  reasonable  notice 
before  any  commissioner  of  the  court  and  be  examined  touching 
any  or  all  of  the  matters  pertaining  to  the  claim.  Such  examination 
is  required  to  be  reduced  to  writing  by  the  commissioner  and  to  be 
returned  to  and  filed  in  the  court,  and  it  may,  in  the  discretion  of 
the  attorney  or  solicitor  of  the  United  States  appearing  in  the  cause, 
be  read  and  used  in  evidence  on  the  trial  of  the  cause.  If  the 
claimant  fails  to  appear  or  refuses  to  testify  or  answer  as  to  all  mat- 

'  Rev.  Stat.  |  858  ;  United  States  v.  *  Hebrew  Consregation   v.  United 

Clark,  96  U.  S.  37  ;    s.  c,  11  Ct.  CI.  States,  6  Ct.  CI.  241." 

698;  Jones  v.  United  States,  1  Ct.  CI.  ^  United  States  v.  Anderson,  9  Wall. 

383;  McKeeu.  United  States,  1  Ct.  CI.  56;  Grossmeyer  v.   United  States,  4 

336  ;  Brooke  v.  United  States,  2  Ct.  CI.  Ct.  CI.  1. 

180;  StoddartiJ.  United  States,  4  Ct.  CI.  ^  Wood  v.  United  States,  10  Ct.  CI. 

511.  395.     A  surety  on  a  bond,  given  by 

^  United  StJitesw.  Anderson,  9  Wall,  the  claimant  to  the  United  States  to 

56.  secure  the  fulfillment  of  a  contract  on 

'  United  States  v.  Clark,  96  U.   S.  which  the  claim  is  based,  is  not  com- 

37;  8.  c,  11  Ct.  CI.  698.  petent  to  testify  in  favor  of  the  claim- 
ant :  Id. ;  Macauley's  Case,  Ct.  CI.  575. 


372  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

ters  within  his  knowledge  material  to  the  issue  after  reasonable 
notice  thereof,  the  court  may  order  that  such  cause  shall  not  be 
brought  forward  for  trial  until  he  shall  have  fully  complied  with  the 
order  of  the  court  in  the  premises.^ 

Under  the  provisions  of  the  section  last  cited,  it  has  been  held 
that  no  order  can  be  made  for  the  examination  of  the  assignor  of 
the  claimant.  The  examination  provided  for  by  this  section  is  lim- 
ited to  the  claimant  himself,  and  cannot  be  extended  to  other  per- 
sons. He  alone  by  the  provisions  of  the  section  can  be  held  responsi- 
ble for  his  non-attendance  as  a  witness,  after  reasonable  notice;  he 
alone  can  be  aifected  by  his  refusal  to  testify ;  and  it  is  only  for  his 
refusal  that  the  court  can  delay  the  trial  until  he  shall  have  fully 
complied  with  the  order  of  the  court  in  that  behalf.^ 

For  forms  for  the  Court  of  Claims,  see  post. 

§  447.  The  testimony  to  be  taken  in  the  county  where  the  witness 
resides  ;  how  witnesses  compelled  to  attend. — The  statute  particu- 
larly requires  that  the  testimony  in  cases  pending  in  this  court 
shall  be  taken  in  the  county  where  the  witness  resides,  when  it  can 
be  conveniently  done ;  and  the  court  may  issue  subpoenas  to  re- 
quire the  attendance  of  a  witness  before  any  person  appointed  com- 
missioner by  the  court  for  that  purpose ;  and  the  subpoenas  have 
the  same  effect  as  if  issued  from  any  district  court,  and  com- 
pliance therewith  may  be  compelled  under  rules  and  orders  of  the 
court.^ 

§  448.  Either  party  may  cross-examine  witnesses. — The  statute 
provides  that  in  taking  testimony  to  be  used  in  support  of  a  claim, 
the  United  States  shall  have  an  opportunity  to  file  interrogatories, 
or  by  attorney  to  examine  witnesses  under  such  regulations  as  the 
court  may  prescribe  ;  and  that  like  opportunities  shall  be  afforded 
to  the  claimant  in  cases  where  testimony  is  taken  on  behalf  of  the 
United  States  under  like  regulations.*  And  the  commissioner  tak- 
ing testimony  to  be  used  in  this  court  is  required  to  administer  an 
oath  or  affirmation  to  the  witnesses  brought  before  him  for  exam- 
ination.* 

§  449.  Fees  of  the  commissioner  and  other  expenses ;  by  whom 
paid. — The  fees  of  the  commissioner  before  whom  a  deposition  is 

1  Rev.  Stat.  §  1080.  ^  Rev.  Stat.  U  1081,  1082. 

■^  3Iacauley  v.  United  States,  11  Ct.         *  Rev.  Stat.  |  1083. 
01.  ;J5.  5  j^ev.  Stat.  I  1084. 


COURT    OF    CLAIMS.  373 

taken,  and  the  costs  of  the  commission  and  notices,  shall  be  paid  by 
the  claimant,  Avhen  the  testimony  is  taken  on  his  behalf;  but  when 
taken  at  the  instance  of  the  government  such  .fees,  together  with  all 
postage  incurred  by  the  Assistant  Attorney-General,  shall  be  paid 
out  of  the  contingent  fund  provided  for  the  Court  of  Claims,  or 
other  appropriation  made  by  Congress  for  that  purpose.^ 

§  450.  When  claims  will  be  forfeited  for  fraud. — "Any  person 
who  corruptly  practices  or  attempts  to  practice  any  fraud  against 
the  United  States  in  the  proof,  statement  or  establishment  or 
allowance  of  any  claim  against  the  United  States,  shall  ipso  facto 
forfeit  the  same  to  the  government ;  and  it  shall  be  the  duty  of  the 
Court  of  Claims  in  such  cases  to  find  specifically  that  such  fraud 
was  practiced  or  attempted  to  be  practiced,  and  thereupon  to  give 
judgment  that  such  claim  is  forfeited  to  the  government,  and  that 
the  claimant  be  forever  barred  from  prosecuting  the  same."^ 

§  451.  The  judgment  or  decree. — The  judgment  or  decree  of  the 
Court  of  Claims  on  a  final  hearing,  if  in  favor  of  the  claimant,  must 
be  for  a  certain  specific  sum.^  If  the  claim  is  made  by  an  account- 
ing officer,  for  a  loss  of  the  money  or  other  property  of  the  United 
States  without  his  fault,  the  court  should  decree  in  his  favor  the 
amount  thereof.*  A  proceeding  to  recover  the  proceeds  of  captured 
or  abandoned  property  is  in  the  nature  of  a  proceeding  in  rem,  and 
is  in  effect  an  information  against  a  fund  in  the  possession  of 
the  United  States,  held  for  the  parties  interested  in  it.  There  can 
be  no  liability  in  such  a  case  if  there  is  no  fund.  If  it  has  been 
consumed  in  expenses  or  other  legitimate  purposes,  there  is  no 
ground  for  the  claim.  If  only  a  part  of  the  original  fund  remains, 
the  balance  having  been  paid  out  under  a  judgment,  or  been  re- 
leased to  other  claimants  having  an  interest  in  it,  by  the  Secretary 
of  the  Treasury,  the  claimant  can  only  obtain  judgment  for  the 
balance.*  For  forms  of  judgment  or  decree  of  the  Court  of  Claims, 
see  post,  Forms  for  the  Court  of  Claims. 

§  452.  When  the  court  may  grant  a  new  trial. — "  When  the  judg- 
ment is  rendered  against  any  claimant  the  court  may  grant  a  new 

1  Rev.  Stat.  §  108.5.  273  ;  Sharp  v.  United  States,  12  Ct. 

2  Rev.  Stat.  §  1U86.  CI.  638  ;  Seviere  v.  United  States,  7 

3  United  States  v.  Anderson,  9  Wall.  Ct.  CI.  388  ;  Winchester  v.  United 
56;  s.  c,  4  Ct.  CI.  467;  Brown  v.  States,  14  Ct.  CI.  13;  s.  c,  99  U.  S. 
United  States,  6  Ct.  CI.  171.  1372  ;   United  States  v.  Villalona;a,  23 

*  Rev.  Stat.  I  1062.  Wall.  35. 

5  Thomas  v.  United  States,  12  Ct.  CI. 


374  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

trial  for  any  reason  which,  by  the  rules  of  common  law  or  chancery 
in  suits  between  individuals,  would  furnish  sufficient  ground  for 
granting  a  new  trial.','  ^ 

The  general  principles  of  the  law  will  be  observed  in  granting  new 
trials  by  this  court.  Thus,  a  new  trial  will  not  be  granted  on  the 
ground  of  newly-discovered  evidence,  if  it  could  have  been  dis- 
covered with  due  diligence  before  the  trial.  And  even  where  due 
diligence  has  been  used  for  this  purpose,  a  new  trial  will  not  be 
granted  unless  it  is  made  to  appear  that  a  different  conclusion  would 
probably  be  reached  if  the  new  evidence  was  before  the  court. ^  Nor 
will  a  new  trial  be  granted  merely  because  the  amount  involved  is 
too  small  to  allow  an  appeal.^  But  if  the  decision  is  founded  upon 
a  mistake  of  law,  the  claimant  may  have  a  review.*  So  if  the  judg- 
ment is  entered  upon  matters  not  properly  in  evidence,  it  will  be 
vacated  and  a  new  trial  granted.' 

A  new  trial  will  not  be  granted  on  the  ground  that  the  Supreme 
Court  has  made  some  decisions  since  the  judgment  that  might  en- 
title the  claimant  to  a  judgment  in  his  favor;®  nor  on  the  ground 
of  a  mistake  in  fact,  unless  one  of  the  judges  who  joined  in  render- 
ing the  judgment  desires  a  reargument  after  examining  the  grounds 
of  mistake  upon  which  it  is  asked.''  The  mode  of  seeking  a  new 
trial  would  be  the  usual  one,  by  motion  in  writing,  stating  specific- 
ally the  particular  grounds  upon  which  it  is  based,  accompanied  by 
the  usual  affidavits  of  facts  outside  the  record  where  it  rests  upon 
such  facts. 

§  453.  When  a  new  trial  -will  be  granted  on  the  motion  of  the 
United  States. — At  any  time  while  a  claim  is  pending  before  the 
Court  of  Claims,  or  on  appeal  from  it,  or  within  two  years  next 
after  the  final  disposition  of  it,  the  court  may,  on  motion  on  behalf 
of  the  United  States,  grant  a  new  trial  and  stay  the  payment  of 
any  judgment  therein  upon  such  evidence,  cumulative  or  otherwise, 
as  shall  satisfy  the  court  that  any  fraud,  wrong  or  injustice  in  the 

1  Rev.  Stat.  ^  1087.  *  Calhoun  v.  United  States,  14  Ct. 

2  Garrison  v.  United  States,  2  Ct.  CI.     CI.  193. 

382 ;  Armstrong  v.  United  States,  6  *  Alvord  v.  United  States,  9  Ct.  CI. 

Ct.  CI.  226;  Deeson  v.  United  States,  133. 

6  Ct.  CI.   227  ;    Bramhall  v.  United  «  Bramhall  v.  United  States,  6  Ct. 

States,  6  Ct.  CI.  238  ;  Child  v.  United  CI.  238. 

States,  6  Ct.  CI.  44  •,  Silvej  v.  United  '  Fendall  v.  United  States,  12  Ct.  CI. 

States,  7  Ct.  CI.  3U5.  305. 

^  Deeson  v.  United  States,  6  Ct.  CI. 
227. 


COURT    OF   CLAIMS.  375 

premises  has  been  done  the  United  States ;  but  until  some  order  is 
made  staying  the  payment  of  the  judgment,  the  same  is  payable  as 
provided  by  law  in  other  cases. ^ 

The  words  "  final  disposition,"  used  in  the  section  last  cited,  have 
been  construed  to  mean  the  final  disposition  on  appeal,  if  an  appeal 
is  taken,  and  if  none  is  taken,  then  the  final  decision  of  the  Court 
of  Claims ;  and  that  court  may  grant  a  new  trial,  in  the  case  pro- 
vided for,  at  any  time  within  two  years  after  a  final  disposition, 
even  though  it  may  have  been  affirmed  on  appeal  in  the  Supreme 
Court.2 

If  after  a  "  final  disposition"  of  a  claim  a  motion  for  a  new  trial 
is  granted  by  the  Court  of  Claims,  after  an  appeal  is  taken  and 
while  it  is  pending,  this  vacates  the  former  judgment,  and  the  court 
resumes  the  control  of  the  case  and  the  parties,  and  the  Supreme 
Court  will  not  grant  a  certiorari  to  bring  up  the  proceedings  subse- 
quent to  the  appeal;  but  after  a  final  judgment  on  the  new  trial 
the  case  may  be  taken  to  the  Supreme  Court  for  review.^  The 
proper  course  to  take  in  such  a  case  would  be  to  move  to  dismiss 
the  appeal  in  the  Supreme  Court  on  a  proper  showing  of  the  facts, 
or  to  have  the  cause  continued  in  the  Supreme  Court.  But  the 
mere  filing  of  a  motion  for  a  new  trial  would  be  no  ground  for  dis- 
missing the  cause  in  that  court,*  although  the  cause  may  be  con- 
tinued to  await  the  decision  on  the  motion  for  a  new  trial. 

One  of  the  grounds  for  obtaining  a  new  trial  under  the  provisons 
of  the  section  of  the  Revised  Statute  last  referred  to  is  that  some 
"injustice  has  been  done  to  the  United  States."  The  injustice 
contemplated  by  this  provision  is  not  that  resulting  merely  from 
judicial  errors  committed  on  the  trial,  but  such  as  are  discovered 
after  the  rendition  of  the  judgment.^  And  a  new  trial  will  not  be 
granted  on  the  ground  of  newly-discovered  evidence  unless  there 
was  due  diligence  to  discover  it  before  the  trial ;  and  the  obligation 
to  use  due  diligence  in  such  cases  falls  upon  the  officers  whom«the 
law  requires  to  take  official  cognizance  of  the  suit,  or  who  are 
charged  in  law  or  in  fact  with  its  defence.^     Nor  will  it  be  granted 

1  Rev.  Stat.  §  1088.  *  United  States  v.  Crusell,  12  Wall. 

■^  Ex  parte  Russell,  13  Wall.  664;  175. 

Ex  parte  United  States,  16  Wall.  699.  ^  Child  v.  United  States,  6  Ct.  CI. 

'  United  States  v.  Young,  94  U.  S.  44. 

258  ;  United  States  v.  Ayers,  9  Wall.  «  Silvey  v.  United  States,  6  Ct.  CI. 

60S.  305. 


376  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

in  any  case  on  the  ground  of  newlj-discovered  evidence,  if  the  new 
evidence  would  not  change  the  result ;  or  for  an  error  in  law,  where 
there  is  ample  remedy  by  appeal.^ 

§  454.  Final  judgments  of  the  Court  of  Claims ;  how  paid. — Sec- 
tion 1089  of  the  Revised  Statutes  provides  for  the  payment  of  all 
judgments  in  this  court,  or  on  appeal  in  Ihe  Supreme  Court  in 
favor  of  claimants,  as  folloAVs :  *'  In  all  cases  of  final  judgments  in 
the  Court  of  Claims,  or  on  appeal,  by  the  Supreme  Court,  where 
the  same  are  affirmed  in  favor  of  the  claimants,  the  sum  due  thereby 
shall  be  paid  out  of  any  general  appropriation  made  by  law  for  the 
payment  or  satisfaction  of  private  claims,  on  presentation  to  the 
Secretary  of  the  Treasury  of  a  copy  of  said  judgment  certified  by  the 
clerk  of  the  Court  of  Claims  and  signed  by  the  Chief  Justice,  or  in 
his  absence  by  the  presiding  judge  of  said  court." 

The  act  of  March  3,  1875,^  restricts  the  provisions  of  the  fore- 
going section,  and  makes  it  the  duty  of  the  Secretary  of  the  Treasury 
in  such  cases,  if  the  plaintiff  or  claimant  is  indebted  to  the  United 
States  in  any  manner,  to  withhold  payment  of  an  amount  of  such 
judgment  or  claim  equal  to  the  debt  due  to  the  United  States.  If 
the  claimant  assents  to  this,  then  it  is  the  duty  of  the  Secretary  to 
execute  a  discharge  of  the  debt  due  from  the  plaintiff  or  claimant 
to  the  United  States.  But  if  he  denies  the  indebtedness  to  the 
United  States,  or  refuses  to  consent  to  the  set-off,  then  the  Secretary 
is  required  to  withhold  of  such  further  amount  of  such  judgment  or 
claim  as  in  his  opinion  will  be  sufficient  to  cover  all  legal  charges 
and  costs  in  prosecuting  the  debt  of  the  United  States  to  a  final 
judgment.  If  such  is  not  already  in  suit,  it  is  made  the  duty  of 
the  Secretary  to  cause  legal  proceedings  to  be  immediately  com- 
menced to  enforce  the  same,  and  to  cause  the  same  to  be  prose- 
cuted to  final  judgment  with  all  reasonable  dispatch.  If  in  such 
action  judgment  shall  be  rendered  against  the  United  States,  or 
the  amount  recovered  for  the  debt  and  costs  shall  be  less  than  the 
amount  withheld,  he  is  required  to  pay  over  the  balance  to  the 
plaintiff,  with  six  per  cent,  interest  thereon  for  the  time  it  has  been 
so  withheld  from  him. 

This  provision  requires  the  amount  of  any  debt  due  from  the 

^  Ealer  v.  United  States,  5  Ct.  CI.  preme   Court   by  appeal :    Young  v. 

708  ;  Child  V.  United  States,  7  Ct.  CI.  United  States,  99  U.  8.  641, 

305.     A  decision  on  a  motion  for  a  ^  Ch.  149,  18  Stat.  481. 
new  trial  cannot  be  taken  to  the  Su- 


COURT    OF    CLAIMS.  6(1 

claimant  to  the  United  States  to  be  withheld  by  the  Secretary  of 
the  Treasury,  although  this  might  have  been  set  up  as  a  defence  to 
the  claim.  The  statute  conferring  jurisdiction  on  the  court  gives 
it  jurisdiction  to  hear  and  determine  "  all  set-offs,  counter-claims, 
claims  for  damages,  whether  liquidated  or  unliquidated,  or  other 
demands  whatsoever,  on  the  part  of  the  government  of  the  United 
States  against  any  person  making  claim  against  the  government  in 
said  court."  As  a  general  rule,  in  suits  between  private  parties, 
such  a  defence  should  be  made  in  the  original  suit ;  but,  as  the  allow- 
ance of  such  suits  against  the  government  is  a  mere  matter  of  grace, 
it  has  a  legal  right  to  impose  such  conditions  and  restrictions  in  the 
premises  as  it  thinks  proper.  Experience  has  probably  shown  that 
legal  defences  on  the  part  of  the  government  are  frequently  over- 
looked, or,  through  negligence  of  officers  or  otherwise,  not  made. 

The  term  general  appropriation  for  private  claims,  used  in  the 
statute,  has  been  held  to  mean  appropriations  made  for  the  pay- 
ment of  debts  which  were  not  paid  out  of  the  specific  appropria- 
tions.^ If  the  claimant  consents  to  take  the  balance  due  him  after 
deducting  the  set-off  claimed  by  the  Secretary,  and  discharges  the 
judgment,  he  thereby  waives  the  right  to  have  the  validity  of  the 
debt  tested  by  legal  proceedings.^ 

§  455.  Interest  on  judgments  of  the  Court  of  Claims  affirmed  in 
the  Supreme  Court. — Where  a  judgment  is  affirmed  in  the  Supreme 
Court,  in  favor  of  the  claimant,  on  an  appeal  from  the  Court  of 
Claims,  interest  thereon  at  the  rate  of  five  per  centum  must  be 
allowed  from  the  date  of  its  presentation  to  the  Secretary  of  the 
Treasury  for  payment,  as  aforesaid.  But  no  interest  can  be  allowed 
subsequent  to  the  affirmance  unless  presented  as  aforesaid  to  the 
Secretary  of  the  Treasury.^  No  interest  can  be  allowed  on  any 
claim  up  to  the  time  of  the  rendition  of  judgment  thereon  by  the 
Court  of  Claims,  unless  upon  a  contract  expressly  stipulating  there- 
for.* But  where  a  factor  filed  a  claim  against  the  proceeds  of  cap- 
tured property,  which  exceeded  his  claim,  he  was  allowed  interest 
from  the  time  his  claim  accrued  up  to  the  time  of  the  rendition  of 
the  judgment.^     And  where  a  claim  was  referred  to  the  Court  of 

1  Sweeny  v.  United  States,  5  Ct.  CI.  *  Rev.  Stat.  |  1091  ;  Todd  v.  United 

285.                                                           -  States,  Dev.   (C.  C.)    175;    Tilson  v. 

•^  Bonnafon  v.  United  States,  14  Ct.  United  States,  100  U.  S.  43. 

CI.  484.  5  Villalonga  v.   United    States,    10 

^  Kev.  Stat.  I  1090.  Ct.  CI.  428  ;  s.  c,  23  Wall.  35. 


378  FEDERAL    PLEADING,    PRACTICE    AiS'D    PROCEDURE. 

Claims  under  a  special  act  of  Congress,  to  be  determined  according 
to  "  rules  and  regulations  heretofore  adopted  by  the  United  States 
in  the  settlement  of  like  cases,"  it  was  held  that  interest  might  be 
allowed  on  the  claim  before  the  rendition  of  the  judgment,  if  interest 
had  been  allowed  by  Congress  in  the  adjustment  of  similar  cases.^ 

§  456.  Payment  of  the  judgment  a  full  discharge. — The  payment 
of  the  amount  due  upon  any  judgment  of  the  Court  of  Claims  and 
of  any  interest  thereon  allowed  by  law  is  a  full  discharge  of  the 
United  States  from  all  claim  and  demand  touching  any  of  the  mat- 
tors  involved  in  the  controversy.^ 

To  constitute  a  bar  to  a  future  action  the  judgment  must  be  one 
rendered  on  the  merits  ;  ^  and  although  the  judgment  may  be  erro- 
neous, it  is  a  bar  to  a  second  suit  for  the  same  cause  of  action.* 
But  a  judgment  in  one  suit  will  not  bar  an  action  in  another  if  the 
causes  of  action  are  different.^  So  an  action  for  a  breach  of  one 
covenant  and  a  judgment  therefor  for  -the  claimant  will  not  bar 
another  action  for  the  breach  of  another  covenant,  even  when  both 
covenants  are  contained  in  the  same  instrument  and  both  were 
broken  at  the  time  of  the  institution  of  the  first  suit.®  So  a 
judgment  for  rent  upon  one  petition  will  not  bar  another  suit  to 
recover  rent  that  was  not  due  at  the  time  of  commencing  the  first 
suit.^ 

§  457.  Appeals  from  the  Court  of  Claims  to  the  Supreme  Court. — 
Section  707  of  the  Revised  Statutes  provides  for  an  appeal  from 
the  Court  of  Claims  to  the  Supreme  Court  of  the  United  States,  as 
follows :  "  An  appeal  to  the  Supreme  Court  shall  be  allowed,  on 
behalf  of  the  United  States,  from  all  judgments  of  the  Court  of 
Claims  adverse  to  the  United  States,  and  on  behalf  of  the  plaintiff 
in  any  case  where  the  amount  in  controversy  exceeds  three  thou- 
sand dollars,  or  where  his  claim  is  forfeited  to  the  United  States  by 
the  judgment  of  said  court  as  provided  in  section  1089." 

There  is  an  absolute  right  of  appeal  on  behalf  of  the  United 
States  and  also  on  behalf  of  the  claimant  where  the  amount  in  con- 
troversy exceeds  the  sum  of  three  thousand  dollars,  or  where  his 

^  United  States  v.  McKee,  91  U.  S.  ^  Shrewsbury   v.   United    States,   9 

442;  s.  c,  10  Ct.  CI.  231.  Ct.  CI.  263. 

-  Rev.  Stat.  ?  1093.  '  Shrewsbury  v.  United  States,  9  Ct. 

•'  Spicer  v.  United  States,  5  Ct.  CI.  CI.  263. 

34.  '  Cross  V.  United  States,   14  Wall. 

*  Osborne  v.  United  States,  9  Ct.  CI.  479  ;  s.  c,  5  Ct.  CI.  88. 
153. 


COURT    OF    CLAIMS.  879 

claim  is  forfeited  to  the  United  States  by  the  judgment  of  the  Court 
of  Claims,  as  provided  by  the  statute.  The  right  to  an  appeal  ex- 
ists in  all  cases  except  where  it  is  withheld,  and  it  is  not  withheld 
from  the  government  in  any  case  where  there  is  a  judgment  against 
them,  nor  from  the  plaintiff  in  any  case  where  the  amount  in  con- 
troversy exceeds  three  thousand  dollars,  or  where  his  claim  has  been 
forfeited.^ 

§  458.  Right  to  appeal,  not  to  writ  of  error. — The  Statute  gives 
the  right  to  an  appeal,  but  makes  no  provision  for  a  writ  of  error, 
and  hence  the  Supreme  Court  cannot  proceed  on  a  writ  of  error  to 
review  a  decision  of  the  Court  of  Claims.^ 

§  459.  Time  and  manner  of  taking  appeals. — Appeals  from  the 
Court  of  Claims  must  be  taken  within  ninety  days  after  the  judg- 
ment or  decree  is  rendered,  and  are  allowed  under  such  regulations 
as  are  or  may  be  prescribed  by  the  Supreme  Court. ^ 

§  460.  Regulations  prescribed  by  the  Supreme  Court  of  the  United 
States  relating  to  appeals  from  the  Court  of  Claims. — The  Supreme 
Court  of  the  United  States  has  prescribed  rules  regulating  appeals 
from  the  Court  of  Claims.  One  rule  provides  that  where  appeals 
are  allowable  they  shall  be  heard  in  the  Supreme  Court  upon  the 
following  record : 

"  1.  A  transcript  of  the  pleadings  in  the  case,  of  the  final  judg- 
ment or  decree  of  the  court,  and  of  such  interlocutory  orders, 
rulings,  judgments  and  decrees  as  may  be  necessary  to  a  proper  re- 
view of  the  case. 

"  2.  A  finding  by  the  Court  of  Claims  of  the  facts  in  the  case 
established  by  the  evidence  in  the  nature  of  a  special  verdict,  but 
not  the  evidence  establishing  them;  and  a  separate  statement  of 
the  conclusions  of  law  upon  said  facts  upon  which  the  court 
founds  its  judgment  or  decree.  The  finding  of  facts  and  conclu- 
sions of  law  to  be  certified  to  this  court  as  a  part  of  the  record."  * 
If  a  statute  confers  on  the  Court  of  Claims  jurisdiction  over  a  new 
subject,  an  appeal  lies  from  a  decision  relating  thereto  the  same  as 
in  other  cases.^ 

§  461.  Application  for  allowance  of  appeals;  w^ithin  what  time  to 
be  made. — Rule  3  provides  that   "  in  all  cases   an  order  for  the 

1  United   States  v.  Adams,  6  Wall.  *  Rule  1  Ct.  CI.,  prescribed  by  the 

103;  Klein's  Cases,  7  Ct.  CI.  240,  Supreme  Court.     See  post,  Rules  for 

^  United  States  v.  Young,  94  U.  S.  the  Court  of  Claims. 

258;  Latham's  Appeal,  9  Wall.  145.  ^  Ex  parte  Zellner,  9  Wall.  244. 

=*  Rev.  Stat.  I  708. 


380     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

allowance  of  appeal  by  the  Court  of  Claims,  or  the  Chief  Justice  in 
vacation,  is  essential,  and  the  limitation  of  the  time  of  granting 
such  appeal  shall  cease  to  run  from  the  time  an  application  is 
made  for  the  allowance."^  An  order  for  the  allowance  of  an  ap- 
peal does  not  absolutely  and  of  itself  remove  the  cause  from  the 
jurisdiction  of  the  court;  but  an  order  revoking  such  an  allowance 
may  still  be  made.^ 

For  appropriate  forms  on  appeals,  see  post^  Forms  for  the  Court 
of  Claims. 

§  462.  Findings  of  fact  and  conclusions  of  law  filed  in  open  court. 
— Where  either  party  is  entitled  to  appeal,  the  Court  of  Claims  is 
required  to  make  and  file  their  finding  of  facts  and  conclusions  of 
law  therein  in  open  court,  before  or  at  the  time  they  enter  the  judg- 
ment in  the  case.^ 

If  a  proper  finding  of  facts  is  not  sent  up  with  the  record,  the 
Supreme  Court  will,  on  a  motion  duly  made  therefor,  make  an 
order  directed  to  the  Court  of  Claims,  requiring  it  to  make  a  proper 
return  as  to  the  existence  of  such  facts.  But  it  cannot  direct  the 
Court  of  Claims  as  to  what  finding  it  shall  make,  or  how  it  shall 
proceed  to  make  its  findings  on  the  points  required  to  be  certified.* 

In  the  case  provided  for  by  the  rule  last  cited  each  party,  at 
such  time  before  the  trial  and  in  such  form  as  the  court  shall  pre- 
scribe, shall  submit  to  it  a  request  to  find  all  the  facts  which  the 
party  considers  proven,  and  deems  material  to  the  due  presentment 
of  the  case,  in  the  finding  of  facts. ^ 

The  fourth  and  fifth  rules  we  have  just  cited  were  undoubtedly 
designed  to  enable  a  party  to  secure  a  finding  of  fact  upon  any  point 
material  to  the  decision  of  the  court ;  but  the  failure  of  the  court  to 
find  the  fact  as  a  party  alleges  it  to  be  will  not  justify  the  bringing 
of  all  the  evidence  on  that  subject  before  the  Supreme  Court.  If 
the  court  refuses  to  make  any  finding  on  the  point,  the  Supreme 
Court  may  order  it  to  make  a  finding.^ 

If  the  Court  of  Claims  refers  a  case  pending  therein  to  a  special 
commissioner  to  state  an  account  and  find  the  facts,  and  his  report 
has  been  heard  upon  exceptions  filed  thereto,  and  the  court  finds 

^  Rule  3  Ct.  CI.,  prescribed  by  the  *  United  States  v.  Adams,  9  Wall. 

Supreme    Court;     United    States   v.  661. 

Adams,  6  Wall.  101.  *  Rule  5  Ct.  CI.,  prescribed  by  the 

^  Ex  parte  Roberts,  15  Wall.  384.  Supreme  Court. 

•^  Rule  4  Ct.  CI.,  prescribed  by  the  *  Mahan  v.  United  States,  14  Wall. 

Supreme  Court.  1U9. 


COURT    OF    CLAIMS.  381 

the  facts  found  sustained  by  the  evidence,  they  will  be  returned  to 
the  Supreme  Court,  in  case  of  an  appeal  of  the  case,  as  the  finding 
of  the  court.  And  as  to  facts  requested  to  be  found  by  either 
party,  and  not  found  by  the  court,  they  should  be  certified  up  to 
the  Supreme  Court,  with  the  reasons  for  the  refusal.^ 

The  record  on  appeals  should  be  prepared  strictly  in  accordance 
with  the  rules  prescribed  by  the  Supreme  Court  in  relation  thereto. 
Only  such  statement  of  facts  should  be  sent  up  to  the  Supreme 
Court  as  may  be  necessary  to  enable  it  to  decide  upon  the  correct- 
ness of  the  rulings  in  the  court  below  on  propositions  of  law.  The 
facts  found  by  the  court  must  be  in  such  form  as  to  raise  the  ques- 
tion of  law  decided  by  the  court,  and  no  evidence  should  be  in- 
cluded.^ Even  a  written  agreement  entered  into  by  both  parties  that 
the  evidence  may  be  sent  up  to  the  Supreme  Court  with  the  required 
record  of  the  case  will  not  authorize  the  court  to  certify  up  such 
evidence.^ 

The  finding  of  facts  by  the  Court  of  Claims  in  the  nature  of  a 
special  verdict  is  conclusive  in  the  Supreme  Court  on  appeal,  unless 
it  is  impeached  for  some  error  in  law  appearing  in  the  record.*  But 
where  the  Court  of  Claims  certified  up  on  appeal,  as  a  part  of  its 
findings,  all  of  the  evidence  on  which  a  fact  material  to  the  judg- 
ment rendered  was  found,  from  which  it  appeared  that  there  was  no 
legal  evidence  to  establish  such  fact,  the  Supreme  Court  reversed 
the  judgment.^ 

§  463.  Where  a  request  is  made  to  find  facts. — If  a  party  entitled 
to  appeal  requests  the  finding  of  a  material  fact,  which  is  refused 
by  the  court,  although  there  is  sufficient  evidence  to  sustain  it,  the 
party  aggrieved  thereby  may  except  to  the  ruling  and  have  the 
matter  reviewed  on  appeal.^ 

The  request  for  the  finding  of  particular  facts  must  be  in  writing 
and  made  at  the  trial,  and  embrace  all  the  material  facts  in  the 
case;  and  if  it  be  for  an  additional  finding  of  facts,  it  should  set 
forth  specifically,  distinctly  and  concisely  the  facts  as  to  which  a 

^  Lawrence  v.  United  States,  8  Ct.  *  United   States  v.  Smith,  94  U.  S. 

CI.  252.  214 ;  United  States  v.  Pugh,  99  U.  S. 

-  De  Groot  v.  United  States,  5  Wall.  265. 

419.  5  United  States  v.  Clark,  96  U.  S. 

•'  Hubbel  V.  United  States,  6  Ct.  CI.  37. 

53.     It  is  only  the  ultimate  facts  or  ^  United  States  v.  Adams,  9  Wall, 

propositions  which   can   be   certified  661. 
up,  and  not  the  evidence  of  facts :  Id. 


382  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

finding  is  desired,  and  a  reference  should  be  made  in  the  margin  of 
the  pages  where  the  evidence  to  prove  the  facts  may  be  found ;  but 
it  should  not  ask  that  the  finding  be  an  amendment  or  alteration  of 
the  finding  already  made.^  Decisions  upon  the  admissibility  of 
evidence,  and  orders  made  relating  to  the  conducting  of  the  trial, 
cannot  be  incorporated  into  the  finding  of  the  facts. ^  But  if  the 
Court  of  Claims  admits  questionable  evidence,  the  sufiiciency  of  the 
evidence,  as  we  have  seen,  to  sustain  the  finding  may  be  reviewed 
on  a  proper  statement  of  the  facts. ^ 

If  the  report  of  the  commissioner  appointed  by  the  Court  of 
Claims  is  adopted  by  the  court,  the  finding  of  facts  by  him,  to- 
gether with  such  additional  findings  as  the  court  may  make,  should 
be  transmitted  to  the  Supreme  Court  as  the  findings  of  the  Court 
of  Claims.* 

If  an  ultimate  fact  can  only  be  inferred  from  circumstantial  facts, 
and  there  is  any  doubt  as  to  the  legal  effect  of  these  facts,  the 
findings  should  set  forth  these  circumstantial  facts.^  But  the  find- 
ings need  not  state  the  items  of  the  amount  of  damages.®  If  all 
the  evidence  on  which  a  fact  is  found  is  certified  up  with  the  record 
as  a  part  of  the  finding,  the  evidence  and  the  finding  may  both  be 
examined  to  determine  whether  the  evidence  is  competent  and 
whether  it  establishes  the  fact  found.^  But  if  the  court,  upon 
request,  states  that  a  particular  item  of  damages  is  included  in  its 
estimate  of  damages,  the  claimant  may  except  to  the  finding  on  this 
point,  and  thus  present,  on  appeal  to  the  Supreme  Court,  the  ques- 
tion whether  the  item  is  legally  a  matter  for  which  damages  can  be 
recovered.^  And  if  the  finding  of  facts  does  not  set  forth  the 
amount  the  claimant  is  entitled  to  recover,  the  judgment  will  be 
reversed.^ 

We  will  conclude  our  treatment  of  this  subject  by  quoting  the 
eloquent  remarks  of  an  eminent  American  lawyer  relating  to  the 
constitution  and  functions  of  this  court.     He  says : 

1  Raines  v.  United  States,  ]  1  Ct.  CI.  ^  United  States  v.  Pu^h,  99  U,  S. 
648;  Neal  v.  United  States,  14  Id.  265;  Calhoun  v.  United  States,  14  Ct. 
477  ;  Bright  v.  United  States,  12  Id.     CI.  193. 

646.  *■  United  States  v.  Smith,  94  U.  S. 

2  Blewett  V.  United   States,  10  Ct.     214. 

CI.  235.  '  United  States  v.  Clark,  96  U.  S. 

'  M'Keever  v.  United  States,  14  Ct.  37. 

CI.  396.  «  United  States  v.  Smith,  94  U.  S. 

*  Lawrence  v.  United  States,  8  Ct.  214. 

CI.  252.  8  United  States  v.  Clark,  96  U.  S.  37. 


COURT    OF   CLAIMS.  *  383 

*'  The  court  itself  is  the  first-born  of  a  new  judicial  era.  As  a 
judicial  tribunal,  it  is  not  only  new  in  the  instance ;  it  is  also  ne^v 
in  principle.  So  far  as  concerns  the  power  of  courts  to  afford 
redress,  it  has  heretofore  been  fundamental  that  the  sovereign  can 
do  no  wrong.  This  court  was  erected  as  a  practical  negative  upon 
that  vicious  maxim.  Henceforth  our  government  repudiates  the 
arrogant  assumption,  and  consents  to  meet  at  the  bar  of  enlightened 
justice  every  rightful  claimant,  how  lowly  soever  his  condition 
may  be. 

"  Prior  to  the  institution  of  this  court,  all  rights  as  against  the 
nation  were  imperfect  in  the  legal  sense  of  the  term  ;  every  duty 
of  the  nation  was  a  duty  of  imperfect  obligation.  There  was  no 
judicial  power  capable  of  declaring  either  ;  no  private  person  pos- 
sessed the  means  of  enforcing  the  one  or  coercing  the  other.  But 
effectual  progress  has  been  made  towards  giving  form  and  method 
to  the  administration  of  justice  between  the  nation  and  the  indi- 
vidual. This  court  enables  the  latter  to  obtain  an  authoritative 
recognition  of  his  rights.  No  more  is  needed ;  for  in  no  case  can 
a  state,  after  such  a  recognition,  withhold  payment  and  yet  retain 
its  place  in  the  great  family  of  civilized  nations. 

"  The  ordinary  jurisdiction  of  the  court  bears  a  strong  resem- 
blance to  the  narrow  cognizance  at  common  law;  but  its  extra- 
ordinary jurisdiction  over  all  claims  which  may  be  referred  to  it  by 
either  house  of  Congress  extends  its  power  to  the  utmost  limits 
attainable  by  juridical  science  in  its  fullest  development.  In  this 
aspect  its  dignity  and  importance  as  a  governmental  institution 
cannot  be  too  highly  appreciated.  As  a  means  by  which  rightful 
claims  against  the  government  may  be  readily  established,  and 
those  not  founded  in  justice  promptly  driven  from  the  portals  of 
Congress,  it  must  exercise  a  most  healthful  influence. 

.  "  But  we  are  authorized  to  look  higher  than  the  mere  conveni- 
ence of  suitors  and  the  dispatch  of  public  business.  Enlightened 
patriotism  will  contemplate  other  and  more  important- consequences. 
Caprice  can  no  longer  control.  Here  equity,  morality,  honor  and 
good  conscience  must  be  practically  applied  to  the  determination  of 
claims,  and  the  actual  authority  of  these  principles  over  govern- 
mental action  ascertained,  declared  and  illustrated  in  permanent 
and  abiding  forms.  As  step  by  step,  in  successive  decisions,  you 
shall  have  ascertained  the  duties  of  government  toward  the  citizen, 


oS4:  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

fixed  their  precise  limits  upon  sound  principles,  and  armed  the 
claimant  with  means  of  securing  their  enforcement,  a  code  will 
grow  up  giving  effect  to  many  rights  not  heretofore  practically 
acknowledged. 

"  In  it  will  be  found  enshrined  for  the  admiration  of  succeeding 
ages  an  honorable  portraiture  of  our  national  morality,  and  a  full 
vindication  of  the  eulogium  recently  pronounced  upon  our  people 
by  the  highest  authority  in  the  parent  state.  '  Jurisprudence,' 
says  Lord  Campbell,  in  the  Queen  v.  Millis,  '  is  the  department  of 
human  knowledge  to  which  our  brothers  in  the  United  States  of 
America  have  chiefly  devoted  themselves,  and  in  which  they  have 
chiefly  excelled.'  "^ 

^  Charles  O'Conor,  in  "  Great  Speeches  by  Great  Lawyers,"  p.  191. 


CHAPTER  XIX. 

COMMISSIONERS    OF   THE    CIRCUIT    COURTS. 

§  464.  Circuit  courts  may  appoint;  povrers  and  duties. —  The  office 
of  commissioner  of  the  circuit  court  is  quite  an  important  one,  as 
he  has  the  authority  in  some  cases  to  exercise  functions  which  also 
belong  to  the  highest  judicial  officers  of  the  country. 

We  have  already  noticed  that  any  district  judge  may  appoint 
commissioners,  before  whom  appraisers  of  vessels  or  goods  and 
merchandise  seized  for  breaches  of  any  law  of  the  United  States 
may  be  sworn. ^  This  seems  to  be  the  limit  of  their  authority. 
But  each  circuit  court  can  appoint,  in  the  different  districts  in  which 
it  is  held,  as  many  discreet  persons  as  it  may  deem  necessary,  to  be 
called  "commissioners  of  the  circuit  courts,"  who  may  exercise 
such  powers  as  are  or  may  be  expressly  conferred  upon  them.^ 
But  no  marshal  or  deputy  marshal  of  any  of  the  courts  of  the 
United  States  is  eligible  to  the  office  of  commissioner  of  any  of 
said  courts.^ 

Under  the  provisions  of  the  statutes  the  commissioners  have 
various  powers  conferred  upon  them.  They  have  equal  authority 
with  the  judges  of  the  Supreme  Court  and  of  the  circuit  and  district 
courts  to  hold  to  security  of  the  peace  and  for  good  behavior,  in 
cases  arising  under  the  Constitution  and  laws  of  the  United  States  ;* 
and  they  have  power  to  enforce  the  awards  or  decrees  of  foreign 
consuls,  vice-consuls  or  commercial  agents,  in  cases  where  the  latter 
lawfully  sit  as  arbitrators  of  differences  that  arise  between  the  cap- 
tains and  the  crews  of  vessels  belonging  to  the  nation  whose  in- 
terests are  committed  to  their  charge.^ 

They  may  also  hear  the  applications  of  poor  convicts,  to  be 
relieved  from  imprisonment  in  certain  cases,  and  determine  the 
same;^  and  arrest  foreign  seamen  upon  the  application  of  consular 
offi^cers  in  certain  cases. '^  They  may  also  summon  the  master  of  a  vessel 
to  show  cause  why  process  should  not  issue  against  her  to  answer 

^  Rev.  Stat.  U  57U,  938.  »  ^^y  gtat.  |  728. 

-  Re7.  Stat.  ^  627.  «  Rev.  Stat.  ^|  1042,  5296. 

•^  Rev.  Stat,  g  628.  '  Rev.  Stat.  U  4080,  4081,  5280. 

*  Rev.  Stat,  g  727. 
25 


386  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

for  the  wages  of  seamen,  upon  a  proper  application  therefor;^  take 
depositions  de  bene  esse  in  any  civil  cause  depending  in  the  circuit 
or  district  courts;^  take  bail  affidavits  when  required  in  civil  cases 
in  said  courts,  and  acknowledgments  of  the  same  ;^  administer  oaths 
and  take  acknowledgments  in  certain  cases,  and  certify  the  same;* 
and  issue  search  warrants  to  search  premises,  where  there  is  the 
proper  evidence  that  a  fraud  is  being  perpetrated  against  the  reve- 
nue.^ 

They  have  also  further  powers,  which  we  will  hereafter  more  par- 
ticularly notice,  such  as  to  hear  and  determine  the  claim  made  for 
a  fugitive  from  justice  under  an  extradition  treaty,  but  not  until  they 
are  authorized  so  to  do  by  some  court  of  the  United  States.  So  the 
circuit  court  of  each  judicial  circuit  is  required  to  appoint  from 
the  commissioners  of  each  judicial  district  in  each  judicial  circuit 
one  to  act  as  supervisor  of  elections  for  the  district  of  which  he  is 
a  commissioner,  of  whose  duties  as  such  supervisor  we  shall  here- 
after treat.  Besides  this,  bonds  and  stipulations  may  be  taken  in 
admiralty  before  any  commissioner  in  certain  cases  provided  for  by 
Rule  5  in  admiralty. 

The  statute  conferring  the  power  of  appointing  commissioners 
makes  no  provision  for  their  removal ;  but  the  practice  is  for  the 
courts  to  remove  as  well  as  appoint.  It  has,  however,  been  held 
that  a  commissioner  is  not  an  officer  of  the  court,  and  that  the 
court  in  making  the  appointment  only  exercises  an  agency  imposed 
on  it,  and  does  not  acquire  thereby  a  right  to  supervise  his  proceed- 
ings as  an  officer.^ 

§  465.  Po-wrer  of  commissioners  to  require  security  to  keep  the 
peace  and  for  good  behavior. — Having  referred  in  a  general  way  to 
the  powers  of  the  commissioners  of  the  circuit  courts,  it  will  be  ap- 
propriate to  consider  these  powers  more  particularly,  and  furnish 
forms  for  their  convenience.  In  reference  to  the  power  of  commis- 
sioners to  hold  to  security  to  keep  the  peace  and  for  good  behavior  the 
statute  provides:  "The  judges  of  the  Supreme  Court  and  of  the 
circuit  and  district  courts,  the  commissioners  of  the  circuit  courts  and 
the  judges  and  other  magistrates  of  the  several  states,  who  are  or 
may  be  authorized  by  law  to  make  arrests  for  offences  against  the 

1  Rev.  Stat.  ||  4546,  4547.  '  Rev.  Stat.  §  3462. 

*  Rev.  Stat.  |  863.  ^  J^x  parte    John    Van    Orden,    3 

2  Rev.  Stat.  I  945.  Blateh.  166. 

*  Rev.  Stat.  §  1778. 


COMMISSIONERS.  387 

United  States,  shall  have  the  like  authority  to  hold  to  security  of  the 
peace  and  for  good  behavior,  in  cases  arising  under  the  Constitution 
and  laws  of  the  United  States,  as  may  be  lawfully  exercised  by 
any  judge  or  justice  of  the  peace  of  the  respective  states,  in  cases 
cognizable  before  them."^ 

Similar  provisions  are  to  be  found  in  statutes  of  most  if  not  all  of 
the  states,  which  is  perhaps  sufficient  evidence  of  their  importance 
and  wisdom.  They  are  particularly  efficacious  in  restraining 
treasonable  attempts  against  the  government.^  The  commissioner 
has  under  these  provisions  the  same  power  in  respect  to  the  taking 
of  bail  or  security  that  a  state  magistrate  would  have  in  similar 
cases,  and  no  more.  Thus,  where  a  commissioner,  at  the  request 
of  a  prisoner,  adjourned  his  examination  for  nineteen  days,  in  a  case 
where  the  latter  was  charged  with  a  violation  of  the  revenue  laws, 
and  took  bail  for  his  appearance  at  the  end  of  that  time,  when  the 
magistrate  of  the  state  could  under  such  circumstances  adjourn 
the  case  only  ten  days,  in  a  suit  against  his  sureties  on  the  bond 
for  a  breach  of  it,  it  was  held  that  the  prisoner  could  not  by  con- 
sent confer  the  right  to  adjourn  for  that  time,  nor  estop  the  sureties 
from  setting  up  the  invalidity  of  it.^ 

§  466.  There  must  be  an  information  or  complaint. — The  general 
practice  in  the  several  states  where  cognizance  is  given  the  state 
courts  or  officers  in  such  cases  is  followed  in  cases  presented 
to  commissioners  and  the  federal  judges.  This  must  necessarily  be 
by  information  or  complaint  under  oath,  or  by  a  personal  examina- 
tion of  the  complaining  party,  and  such  others  as  may  be  produced, 
showins:  that  some  one  threatens  to  commit  or  is  about  to  commit 
some  offence  arising  under  the  Constitution  or  laws  of  the  United 
States.  In  such  cases  it  must  appear  that  there  is  at  least  prob- 
able cause  to  believe  that  the  offence  will  be  committed  unless 
the  party  charged  is  restrained  by  the  action  of  the  magistrate; 
and  it  would  not  be  proper  for  him  to  issue  a  warrant  for  the 
arrest  on  the  mere  motion  of  the  commissioner  or  other  officer.* 
For  forms,  see  post,  "Forms  in  proceedings  before  commissioners." 

1  Rev.  Stat.  §  727.  ties,  2  Dill.  94 ;  United  States  v.  Gold- 

2  United  States  v.  Greiner,  4  Phila.     stein,  1  Dill.  413. 

396.  *  Johnson  v.  Tompkins,  Bald.  571 ; 

*  United  States  v.  Case,  8  Blatch.  United  States  v.   Shepherd,   1   Abb. 

250  ;  United  States  v.  Rundlet,  2  Curt.  431. 
44 :  United  States  v.  Morton's  Securi- 


388  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

§  467.  Proceedings  on  examination. — The  usual  proceeding  on 
examination  of  similar  cases  before  state  magistrates  is  followed 
when  they  are  before  federal  magistrates.  When  the  party  charged 
is  brought  before  him,  the  witnesses  may  be  examined  both  on  the 
part  of  the  government  and  of  the  party  accused.  If  from  the  evi- 
dence the  magistrate  believes  that  there  is  good  reason  to  fear  the 
commission  of  the  offence  by  the  accused,  and  that  it  arises  under 
the  Constitution  and  laws  of  the  United  States,  he  should  be  held  to 
answer  before  the  proper  tribunal,  and  give  a  proper  recognizance 
therefor,  with  sureties  to  be  approved  by  the  commissioner,  and 
further  that  he  will  in  the  meantime  keep  the  peace  and  be  of  good 
behavior  toward  all  citizens  of  the  United  States,  and  particularly 
towards  the  one  complaining  in  that  behalf.  For  form  for  a  recog- 
nizance, see  post,  No.  203. 

§  468.  Recognizance  of  witnesses. — "  Any  judge  or  other  officer 
who  may  be  authorized  to  arrest  and  imprison  or  bail  persons 
charged  with  any  crime  or  offence  against  the  United  States  may, 
at  the  hearing  of  any  such  charge,  require  of  any  witness  produced 
against  the  prisoner,  on  pain  of  imprisonment,  a  recognizance  with 
or  without  sureties,  in  his  discretion,  for  his  appearance  to  testify 
in  the  case.  And  where  the  crime  or  offence  is  charged  to  have 
been  committed  upon  the  high  seas  or  elsewhere  within  the  admi- 
ralty and  maritime  jurisdiction  of  the  United  States,  he  may,  in  his 
discretion,  require  a  like  recognizance,  with  such  sureties  as  he  may 
deem  necessary,  of  any  witness  produced  in  behalf  of  the  accused 
whose  testimony  in  his  opinion  is  important,  and  is  in  danger  of 
being  otherwise  lost."  ^ 

A  form  for  a  recognizance  may  be  found  j^ost,  No.  205. 

§  469.  When  the  prisoner  must  be  committed ;  duty  of  the  com- 
missioner to  make  a  return. — If  a  recognizance  is  required  and  given 
by  the  prisoner  he  should  be  discharged,  but  if  not  he  should  be 
committed  to  prison  until  he  furnishes  the  same,  and  the  mittimus 
or  warrant  of  commitment  should,  as  is  usually  required  in  such 
cases  in  proceedings  before  state  officers,  show  the  cause  of  the  com- 
mitment and  the  amount  of  the  security  necessary  for  his  discharge. 

The  proper  form  of  the  mittimus  will  be  found  post,  No.  207. 

^  Rev.  Stat.  §§  848,  879,  1014.  In  must  be  to  the  next  term  of  the  cir- 
V'ermont  all  reco^nizunces  for  the  ap-  cuit  court  to  be  held  in  the  ditstrict: 
pearance  of  witnesses  in   such  cases     Kev.  Stat.  §  SSO. 


COMMISSIONERS.  389 

It  would  be  the  duty  of  the  commissioner  to  make  a  return  of  the 
recognizance  if  one  is  given,  and  of  all  the  papers  and  process,  to 
the  proper  court,  where  the  prisoner  is  required  to  appear  on  or 
before  the  first  day  of  the  next  term  of  the  same. 

§  470.  Commissioners  may  enforce  awards  of  consuls,  etc.,  in 
certain  cases. — The  Statute  provides  for  the  enforcement  of  the 
awards  or  decrees  of  consuls  and  other  agents  of  foreign  countries. 
It  is  as  follows :  "  The  district  and  circuit  courts  and  the  commis- 
sioners of  circuit  courts  shall  have  power  to  carry  into  effect, 
according  to  the  true  intent  and  meaning  thereof,  the  award  or 
arbitration  or  decree  of  any  consul,  vice-consul  or  commercial 
agent  of  any  foreign  nation,  made  or  rendered  by  virtue  of  any 
authority  conferred  upon  him  as  such  consul,  vice-consul  or  com- 
mercial agent,  to  sit  as  judge  or  arbitrator  in  such  differences  as 
may  arise  between  the  captains  and  crews  of  vessels  belonging  to 
the  nation  whose  interests  are  committed  to  his  charge ;  application 
for  the  exercise  of  such  power  being  first  made  to  such  court  or 
commissioner  by  petition  of  such  consul,  vice-consul  or  commercial 
agent.  And  said  courts  and  commissioners  may  issue  all  proper 
remedial  process,  mesne  and  final,  to  carry  into  full  effect  such 
award,  arbitration  or  decree,  and  to  enforce  obedience  thereto  by 
imprisonment  in  the  jail  or  other  place  of  confinement  in  the  district 
in  which  the  United  States  may  lawfully  imprison  any  person  ar- 
rested under  the  authority  of  the  United  States  until  such  award, 
arbitration  or  decree  is  complied  with,  or  the  parties  are  otherwise 
discharged  therefrom,  by  the  consent  in  writing  of  such  consul, 
vice-consul  or  commercial  agent,  or  his  successor  in  office,  or  by  the 
authority  of  the  foreign  government  appointing  such  consul,  vice- 
consul  or  commercial  agent ;  provided,  however,  that  the  expenses 
of  the  said  imprisonment  and  maintenance  of  the  prisoners  and  the 
cost  of  the  proceedings  shall  be  borne  by  such  foreign  government 
or  by  its  consul,  vice-consul  or  commercial  agent  requiring  such 
imprisonment.  The  marshals  of  the  United  States  shall  serve  all 
such  process  and  do  all  other  acts  necessary  and  proper  to  carry 
into  effect  the  premises  under  the  authority  of  said  courts  and  com- 
missioners."^ 

The  required  forms  for  proceeding  under  this  section  may  be 
found  post,  under  the  head  of  "  Forms  in  proceedings  before  commis- 
sioners." 

^  Rev.  Stat,  g  728. 


390  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

§  471.  Offenders  against  the  United  States  ;  when  arrested  by 
commissioners. — Section  1014  provides  :  "  For  any  crime  or  offence 
against  the  United  States,  the  offender  may,  by  any  justice  or  judge 
of  the  United  States,  or  by  any  commissioner  of  a  circuit  court  to 
take  bail,  or  by  any  cliancellor,  judge  of  a  supreme  or  superior 
court,  the  chief  ov  first  judge  of  common  pleas,  mayor  of  a  city, 
justice  of  the  peace,  or  other  magistrate  of  any  state  where  he  may 
be  found,  and  agreeably  to  the  usual  mode  of  process  against  such 
offenders  in  such  state,  and  at  the  expense  of  the  United  States,  be 
arrested  and  imprisoned,  or  bailed,  as  the  case  may  be,  for  trial 
before  such  court  of  the  United  States  as  by  law  has  cognizance  of 
the  offence.  Copies  of  the  process  shall  be  returned  as  speedily  as 
may  be  into  the  clerk's  office  of  such  court,  together  with  the  re- 
cognizances of  the  witnesses  for  their  appearance  to  testify  in  the 
case.  And  where  any  offender  or  witness  is  committed  in  any  dis- 
trict other  than  tiiat  where  the  offence  is  to  be  tried,  it  shall  be  the 
duty  of  the  judge  of  the  district  where  such  offender  or  witness  is 
imprisoned  seasonably  to  issue,  and  of  the  marshal  to  execute,  a 
warrant  for  his  removal  to  the  district  where  the  trial  is  to  be 
had."  ' 

§  472.  Usual  mode  of  procedure  against  offenders  in  the  state 
courts  pursued. — The  words  "usual  mode  of  process  against 
offenders,"  used  in  the  statutes,  are  synonymous  with  usual  mode 
of  proceedings  ;  and  the  mode  of  proceedings  should  in  all  cases 
conform  to  the  usual  practice  and  procedure  in  like  cases  in  the 
courts  of  the  state  where  the  proceedings  shall  take  place.^  The 
authority  granted  to  the  judicial  officer  in  these  cases  is  not  one 
which  can  be  exercised  in  any  arbitrary  manner  which  he  may  see 
fit  to  prescribe  or  adopt,  but  it  must  be  exercised  in  the  same  man- 
ner as  that  pursued  against  offenders  in  similar  cases  under  the  laws 
of  the  state  where  the  prosecution  is  instituted.^ 

§  473.  Information  or  complaint  under  oath. — The  mode  of  pro- 
cedure in  the  state  courts  on  preliminary  examinations  is  gener- 
ally, if  not  universally,  prescribed  by  the  statutes  of  the  various 
states.     There  must  be  at  least  a  probable  cause  to  believe  that  an 


1  See  also  Rev.  Stat.  ||  848,  879.  ^  Bajrnall  v.  Ableman,  4  Wis.  163  ; 

'^  United  States  v.  Rundlett,  2  Curt.  United  States  v.  Clark,  1  Gallis.  497  ; 

41 ;  United  States  v.  Horton's  Securi-  In   re  Robert  M.  Martin,   5  Blatch. 

ties,  2  Dill.  94.  303. 


COMMISSIONERS.  391 

offence  has  been  committed  against  the  United  States,  before  the 
magistrate  can  properly  issue  a  warrant  for  the  arrest  of  an 
offender,  and  the  requisite  proof  on  which  to  base  his  conclusion 
must  be  an  information  or  complaint,  setting  forth  the  necessary 
facts  to  constitute  the  offence  charged,  supported  by  oath.^  But 
it  is  not  necessary  that  the  application  for  the  warrant  should  be 
made  by  the  district  attorney.  Any  person  may  make  the  com- 
plaint under  oath.^  A  warrant  for  the  arrest  should  not,  how- 
ever, be  issued  upon  the  affidavit  of  a  person  who  has  no  personal 
knowledge  of  the  commission  of  the  offence,  and  who  only  states 
that  he  has  been  informed  of  it,  and  believes  the  information  to  be 
true.^ 

It  is  not  essential  that  the  complaint  be  signed  and  verified  be- 
fore the  commissioner,  but  it  should  be  verified  before  some  one 
authorized  to  administer  oaths.*  Nor  need  it  follow  the  exact 
language  of  the  statute  in  charging  the  offence.^  This  is  in  con- 
formity with  the  current  of  decisions  of  the  state  courts  upon  the 
same  point. 

The  form  of  the  complaint  should  be  that  required  by  the  stat- 
utes of  the  state  for  similar  cases  under  state  laws,  if  any,  or,  in 
the  absence  of  this,  such  as  may  have  been  approved  by  the  general 
practice  in  the  state.® 

For  form,  see  post,  No.  197. 

The  warrant  of  arrest,  if  issued,  should,  with  the  necessary  sub- 
poenas on  behalf  of  the  United  States,  be  placed  in  the  hands  of 
the  United  States  marshal  of  the  proper  district  or  his  deputy,  who 
should  serve  and  return  them  in  the  usual  manner  provided  by  the 
state  law.'^ 

§  474.  Notice  to  the  district  attorney. — It  is  not  imperatively 
required  to  give  notice  of  such  proceedings  to  the  district  attorney, 
but  it  is  very  proper  to  do  so  after  the  filing  of  the  complaint,  where 
it  is  convenient  or  practicable,  as  the  government  is  the  party  in- 

^  United   States  ».  Bollman,  1   Cr.         ^  United  States  v.  Hand,  6  McLean 

(C.  C.)  .373.  274. 

■^  United  States  v.  Skinner,  2  "Wheel.         «  United  States  v.  Rundlett,  2  Curt. 

Or.  Gas.  232.  41  ;  United  States  v.  Morton's  Securi- 

'  In   re   Commissioners,    3    Woods  ties,  2  Dill.  94. 
.^02;  United  States  v.  Burr,  2  Wheel.         '  Rev.    Stat.    §§   787,   788.     It  is  a 

Cr.  Cas.  573.  common  practice  to  insert  the  names 

^  Ex  parte    Bollman,    4    Cr.    75  ;  of  all  the  witnesses  in  one  subpoena, 

Hurr's  Trial  14.  and  this  is  the  most  convenient  way. 


392  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

terested  in  the  prosecution.  If  he  appears  it  can  be  only  as  coun- 
sel for  the  government ;  and  he  cannot  direct  the  commissioner  what 
course  he  shall  pursue  or  what  finding  he  shall  make,  nor  can  he 
dismiss  the  proceedings.^ 

§  475.  Preliminary  hearing  ;  witnesses. — At  the  hearing  of  the 
cause  the  course  of  procedure  would  be  the  same  as  in  a  like  case 
under  the  practice  of  the  state,  and  similar  to  that  suggested  in  case 
of  a  prosecution  to  require  security  to  keep  the  peace  and  for  good 
behavior.^  The  accused  may  be  re-presented  by  counsel  and  examine 
witnesses  in  his  own  behalf;^  but  the  magistrate  cannot  issue  pro- 
cess to  summon  witnesses  for  him  in  another  state.* 

The  statute  provides  that  in  no  case  shall  the  fees  of  more  than 
four  witnesses  be  taxed  against  the  United  States  in  the  examina- 
tion of  a  criminal  case  before  a  commissioner  of  a  circuit  court, 
unless  their  materiality  and  importance  are  first  approved  and  certi- 
fied to  by  the  district  attorney  for  the  district  in  which  the  examina- 
tion is  had,  and  such  taxation  is  subject  to  revision  as  in  other  cases. ^ 

If  the  magistrate  adjourns  a  cause  to  a  future  time  it  must  be  in 
accordance  with  the  state  law  and  practice  on  that  subject,  and  it 
cannot  be  for  an  indefinite  time.^  If  the  statutes  of  the  state  pro- 
vide for  giving  bail  in  such  cases,  bail  may  be  taken  for  the  appear- 
ance of  the  accused  at  the  time  fixed ;  ^  but  if  no  bail  is  given  he 
should  be  committed. 

For  form  of  recognizance  in  such  cases,  see  j^ost,  No.  206. 

The  accused  may  be  committed  by  the  commissioner  although  the 
errand  jury  of  the  trial  court  in  such  cases  is  in  session,  and  even 
although  an  indictment  found  against  the  accused  for  the  oifence 
charged  has  been  quashed.^  It  may  further  be  observed  that  whether 
the  commissioner  commits  or  discharges  the  accused  it  is  not  a  final 
bar  to  further  proceedings.     If  he  is  discharged  he  may  be  again 

^  United  States r.  Schumann, 2  Abb.  place:  United  States  v.  Rundlett,  2 

{0.  C.)  523.     In  some  of  the  circuits  Curt.  41. 

there  is  a  rule  requiring  notice  to  be  ^  Rev.  Stat.  ?  981. 

given  the  district  attorney  in  revenue  *  United  States  v.  Worms,  4  Blatch. 

cases:  Rules  13  and  61,  8th  circuit.  332. 

2  See  ante,  I  468.  '  United  States  v.  Horton's  Securi- 

^  United    States  v.  BoUman,  1   Cr.  ties,  2  Dill.    94 ;      United    States    o. 

(C.  C.)  373.  Rundlett,  2  Curt.  41. 

*  United  States  v.  White,  2  Wash.  «  United  States  v.  Burr,  1  Burrs 
29.  The  power  to  hear  implies  the  Trial  79;  United  States  v.  Town- 
power  to  adjourn,  both  as  to  time  and  maker.  Hemp.  299;  United  States  v. 

Smith,  2Cr.  (C.  C.)  HI. 


COMMISSIONERS.  3i<8 

arrested  for  the  same  offence,  and  may  be  held  to  bail  or  committed 
on  sufficient  evidence.  If  committed,  as  we  shall  hereafter  more 
fully  notice,  he  may  apply  to  the  proper  court  for  a  reduction  of 
the  bail  fixed  by  the  commissioner,  or  the  prosecuting  officer  may 
apply  to  the  court  to  have  it  increased,  or  even  to  discharge  the 
prisoner  altogether.  The  prisoner  may  also  procure  a  discharge  in 
a  proper  case  on  habeas  corpus.  The  commissioner's  order  in  such 
a  case  is  not  in  the  nature  of  a  final  judgment.^ 

§  476.  Witness  fees;  how  paid. — Witnesses  are  allowed  for  each 
day's  attendance  in  court  or  before  any  officer  pursuant  to  law  one 
dollar  and  fifty  cents,  and  five  cents  a  mile  each  way  in  going  from 
his  place  of  residence  to  the  place  of  trial  or  examination  and  in 
returning  to  his  place  of  residence.  An  affidavit  of  his  attendance 
and  a  statement  of  his  claim  therefor  should  be  made  out  and  sworn 
to  before  the  commissioner,  who  should  certify  to  the  attendance, 
and  order  the  proper  marshal  of  the  district  to  pay  the  claim. ^ 

For  form  of  affidavit,  certificate  and  order,  seejjost,  Nos.  208,  209. 

§  477.  Decision  of  the  magistrate;  commitment. — If  after  hear- 
ing the  evidence  the  commissioner  believes  that  an  offence  against 
the  United  States  has  been  committed,  and  that  the  accused  is 
guilty  thereof,  he  should  so  find,  and  by  an  order  commit  him  to 
prison  to  await  any  indictment  which  may  be  found  in  the  proper 
court  against  him,  unless  the  offence  is  bailable  and  he  furnish  good 
and  sufficient  bail  for  his  appearance  at  said  court ;  and  if  he  fails 
at  the  time  of  the  decision  to  furnish  a  proper  recognizance  in  such 
cases,  in  a  sum  to  be  fixed  by  the  commissioner,  the  commissioner 
should  issue  a  warrant  of  commitment.^  We  shall  hereafter  notice 
■what  causes  are  and  what  are  not  bailable  before  a  commissioner. 

For  form  of  warrant  for  commitment,  see  post,  No.  204. 

§  478.  "Waiver  of  examination. — The  accused  can  of  course  ap- 
pear before  the  commissioner  at  any  time  after  complaint  is  filed 
and  waive  an  examination,  and  give  a  recognizance  the  same  as  if 

1  United    States   v.  Burr.  1    Burr's  ness,  on  behalf  of  the  United  States, 

Trial  11,  79;  In  re  Robert  M.  Martin,  on  the  order  of  the  court:  Rev.  Stat. 

5  Blatch.  303.  g  855. 

-  Rev.  Stat.  |  848.  3  Anon.,  1  Wool.  422 ;  United  States 

If  a  witness  is  detained  in    prison  v.  Blooni^rart,  2  Ben.  356  ;  In  re  Samuel 

for  want  of  security  for  his  appear-  R.  Van  Canipen,  2  Ben.  419;  In  re 

ance,  he  is  entitled  to  a  compensation  Robert    M.    Martin,    5    Blatch.   303  ; 

of  one  dollar  a  day:  Rev.  Stat.  |  848.  United  States  v.  Burr,  1  Burrs  Trial 

The  marshal  is  required  to  pay  wit-  11. 


o94  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

he  bad  been  held  to  bail  for  his  appearance  after  an  examination. 
This  is  the  practice  in  the  state  courts ;  and  of  course  it  could  not 
be  construed  into  any  confession  of  guilt  of  the  accused. 

The  warrant  of  commitment  should  in  all  cases  show  on  its  face 
a  sufficient  cause  of  commitment.^  If  it  does  not  set  forth  an  act 
that  is  made  an  offence  against  the  United  States  it  would  be  void,^ 
and  the  prisoner  discharged  on  habeas  corpus. 

§  479.  Removal  of  prisoner  to  another  district. — The  section 
under  consideration  provides  that,  where  any  offender  is  committed 
in  any  district  other  than  that  where  the  offence  is  to  be  tried,  it  is 
the  duty  of  the  judge  of  the  district  Avhere  such  offender  is  im- 
prisoned seasonably  to  issue,  and  of  the  marshal  to  execute,  a  war- 
rant for  his  removal  to  the  district  where  the  trial  is  to  be  had.^ 
Under  this  provision  a  party  who  has  committed  an  offence  against 
the  United  States  in  the  District  of  Columbia  may  be  arrested  and 
examined  elsewhere,  and,  if  held  for  trial,  may  be  removed  to  said 
district  for  trial.*  But  it  does  not  apply  to  an  arrest  made  for  the 
purpose  of  extradition  to  a  foreign  country." 

§480.  Significance  of  the  word  "seasonably." — The  accused  is 
entitled  to  a  reasonable  opportunity  to  procure  bail,  and  the  statute 
does  not  authorize  his  removal  under  the  last  clause  of  the  section 
until  he  has  been  imprisoned  for  the  want  of  bail ;  that  is,  for  his 
failure  to  enter  into  a  recognizance  for  his  appearance  at  the  proper 
court.  After  this  it  is  the  duty  of  the  judge  of  the  district  where 
the  offender  is  imprisoned,  and  where  he  must  be  tried  in  another 
district,  to  seasonably  issue  his  warrant  for  his  removal  to  the  dis- 
trict where  the  trial  is  to  be  had.  "Nothing  is  to  be  done  rashly 
or  in  haste  or  malice.  A  man  is  not  to  be  snatched  from  his  home 
on  the  instant,  and  carried  into  a  distant  state.  But  a  season  is  to 
be  allowed  at  least  to  procure  bail  if  not  to  arrange  for  his  departure, 
and  this  season  is  to  be  allowed  after  his  arrest,  examination,  the 
fixing  of  the  amount  of  bail,  and  imprisonment  for  delinquency  in 
not  giving  it."*' 

^  Ex  parte  Thomas  Williams,  4  Cr.  ance  which  may  be  required  of  wit- 

(C.  C.)  343;  Ex  parte  N.  V.  H.  Ben-  nesses :  United  States  v.   Haskins,  3 

nett,  2  Id.  612;  Ex  parte  Burford,  3  Saw.  262. 

Or.  448 ;  Ex  parte  Robert  Sprout,  I  *  In  re  Augustus   C.  Buel,  3  Dill. 

Cr.   (C.  C.)    424;    United    States    v.  116. 

Brown,  4  Id.  333.  *  In  re  Philip  Henrich,  5   Blatch. 

2  Bagnall  v.  Ableman,  4  Wis.  163.  414. 

'  See  also  §  879,  as  to  the  recogniz-  *  Bagnall  v.  Ableman,  4  Wis.  163. 


COMMISSIONERS.  395 

The  commissioner  has  the  same  power  to  take  bail  as  a  state 
magistrate  in  a  similar  case ;  and  although  the  prisoner  is  in  the 
hands  of  a  marshal  awaiting  a  warrant  for  his  removal  to  another 
district  from  the  district  judge,  it  appears  that  the  commissioner 
may  still  release  him  at  any  time  before  the  issuing  of  the  warrant, 
on  his  entering  into  a  proper  recognizance  for  his  appearance  as 
required  by  the  order  of  the  commissioner.^ 

§  481.  Amount  of  bail;  -what  the  recognizance  should  contain. — 
The  word  bail,  in  the  statutes,  means  the  taking  of  security  for  the 
appearance  of  the  accused  party  at  the  proper  court  and  at  the 
proper  time;  and  this  must  not  be  excessive.  What  would  be  large 
bail  in  one  case  would  perhaps  not  be  large  in  another.  The  judg- 
ment of  the  court  or  magistrate  in  fixing  the  amount  of  bail  should 
be  guided  by  a  reasonable  consideration  of  the  ability  of  the  pris- 
oner to  give  bail  and  the  atrocity  of  the  offence ;  always  bearing  in 
mind  that  the  object  in  requiring  bail  is  to  secure  the  personal  attend- 
ance of  the  accused  at  the  proper  court,  to  answer  to  any  indict- 
ment which  may  be  found  against  him  for  the  offence  charged.^ 

The  bail  to  be  given  is  a  recognizance  or  bond  with  sureties. 
This  should  recite  the  act  or  offence  with  which  the  principal  is 
charged  ;  and  if  from  the  recital  of  the  act  or  offence  charged  it 
appears  that  it  does  not  in  fact  show  any  offence  against  the  United 
States,  or  any  violation  of  an  act  of  Congress,  it  is  void  and  the 
sureties  are  not  bound  thereby.  But  it  is  sufiicient  if  it  sets  forth 
an  act  punishable  by  a  statute  of  the  United  States,  although  with- 
out any  particulars.^ 

§  482.  Extent  of  liability  of  sureties. — A  recognizance  which 
requires  the  accused  to  appear  in  the  proper  court  and  attend  from 
day  to  day  to  answer  the  charge  made  against  him  is  not  discharged 
by  the  quashing  of  an  indictment  which  may  be  found  against  him  ; 
for  another  indictment  may  still  be  found  during  the  term,  for  the 
same  offence,  and  free  from  the  objections  to  the  former  one;  but  if 
the  court  finally  adjourns  without  taking  any  action  against  him 
on  the  charge,  he  and  his  sureties  are  discharged.* 

^United    States   r.  Horton,  2  Dill.  'United  States  tJ.  Hand,  6  McLean 

94  ;  United  States  v.  Voitz,  14  Blatch.  274;  United  States  v.  Dennis,  1  Bond 

15.  103. 

^  United  States  v.  Lawrence,  4  Cr.  *  United  States  v.  White,  5  Cr.  (C. 

(C.  C.)518:    United  States  u.  Case,  8  C.)   368;    United    States   v.  Burr,   1 

Blatch.  250 ;    Ex  parte  George  Mil-  Burr's  Trial  79. 
burn,  9  Pet.  704. 


396  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

If  the  recognizance  stipulates  for  the  appearance  of  the  accused 
at  the  next  term  of  the  proper  trial  court  and  at  any  subsequent 
term  of  said  court  to  be  thereafter  held,  this  means  only  such  sub- 
sequent term  as  may  follow  in  regular  succession  in  the  course  of 
business  of  the  court,  and  an  agreement  at  any  term  to  continue 
the  case  for  an  indefinite  period  would  discharge  the  sureties.'  But 
if  the  accused,  after  giving  the  recognizance,  should  be  arrested, 
convicted  and  imprisoned  under  the  state  laws,  such  proceeding  and 
imprisonment  would  be  no  excuse  for  his  non-appearance,  nor  exon- 
erate the  bail  from  their  obligation  to  produce  him  ;  nor  would  the 
death  of  the  accused  after  default  and  forfeiture  of  the  recognizance 
relieve  them  from  their  liability.^ 

§  483.  Copies  of  process  to  be  returned  to  the  proper  court. — 
Whenever  a  court  of  the  United  .  States  in  the  district  where  the 
examination  takes  place,  or  in  some  other  district,  within  or  without 
the  state,  has  by  law  cognizance  of  the  oifence  charged,  and  for 
which  the  accused  is  held  to  bail  or  committed,  it  becomes  the  duty 
of  the  commissioner  to  return,  as  speedily  as  may  be,  copies  of  the 
process,  together  with  the  recognizances  taken,  to  the  clerk  of  the 
proper  court. 

The  word  process,  as  here  used,  undoubtedly  means  proceedings 
in  the  case  until  the  determination  of  it  by  the  order  or  judgment 
of  the  magistrate.  This,  then,  would  embrace  the  information  or 
complaint,  with  its  verification,  and  a*  statement  of  the  proceedings 
before  the  commissioner  and  his  action  thereon,  and  the  recogni- 
zance of  the  accused  or  the  warrant  of  commitment,  as  the  case 
may  be,  and  the  original  recognizances  of  the  witnesses  for  their 
appearance  to  testify  in  the  case.  These  should  be  duly  certified 
by  the  commissioner 

The  mode  and  scope  of  the  return  in  such  cases  has  been  the 
subject  of  regulation  by  rule  of  some  of  the  circuit  courts,  per- 
haps most  of  them. 

§  484.  Provisions  for  the  discharge  of  poor  convicts. — Provision 
is  made  by  the  Revised  Statutes  for  the  discharge  from  prison  of 

^  Reese  r.  United  States,  9  Wall.  13.  ted  to  bail  may  be  arrested  by  his 

^  United  States    v.  Van   Fossen,    1  bail  at  any  time  and  delivered  to  the 

Dill.  406.     Bail,  in  cases  where  the  marshal   or    his    deputy,   before    the 

punishment  may  be  death,  cannot  be  commissioner,    and     be   exonerated: 

taken  by  a  commissioner:  Rev.  Stat.  Rev.  Stat.  |  1018.     So  better  security 

I  1016.     A  party  accused  and  admit-  may  be  required :  Id.  ^  1019. 


COMMISSIONERS.  397 

}30or  convicts  who  have  been  sentenced  to  pay  a  fine,  or  fine  and 
costs.  Section  1042  provides  as  follows :  "  When  a  poor  convict, 
sentenced  by  any  court  of  the  United  States  to  pay  a  fine,  or  fine 
and  costs,  whether  with  or  without  imprisonment,  has  been  confined 
in  prison  thirty  days,  solely  for  the  non-payment  of  such  fine,  or 
fine  and  costs,  he  may  make  application  in  writing  to  any  com- 
missioner of  the  United  States  court  in  the  district  where  he  is 
imprisoned,  setting  forth  his  inability  to  pay  such  fine,  or  fine  and 
costs,  and  after  notice  to  the  district  attorney  of  the  United  States, 
who  may  appear,  offer  evidence  and  be  heard,  the  commissioner 
shall  proceed  to  hear  and  determine  the  matter,  and  if  on  examina- 
tion it  shall  appear  to  him  that  such  convict  is  unable  to  pay  such 
fine,  or  fine  and  costs,  and  that  he  has  not  any  property  exceeding 
twenty  dollars  in  value,  except  such  as  is  by  law  exempt  from  being 
taken  on  execution  for  debt,  the  commissioner  shall  administer  to 
him  the  following  oath  :  '  I  do  solemnly  swear  that  I  have  not  any 
property,  real  or  personal,  to  the  amount  of  twenty  dollars,  except 
such  as  is  by  law  exempt  from  being  taken  on  civil  precept  for  debt 
by  the  laws  of  (state  where  the  oath  is  administered) ;  and  that  I 
have  no  property  in  any  way  covered  or  concealed,  or  in  any  way 
disposed  of,  for  future  use  and  benefit.  So  help  me  God.'  And 
thereupon  such  convict  shall  be  discharged,  the  commissioner  giving 
to  the  jailer  or  keeper  of  the  jail  a  certificate  setting  forth  the 
facts."  1 

In  construing  this  section  it  has  been  held  that  a  poor  convict  is 
entitled  to  be  released  under  its  provisions,  although  he  has  been 
given  a  pardon  on  condition  that  he  pay  a  fine  and  costs. ^ 

§  485.  Commissioner's  pow^er  to  arrest  foreign  seamen,  in  case  of 
controversies,  etc.,  at  sea. — Section  4079  of  the  Revised  Statutes 
provides  that  "  whenever  it  is  stipulated  by  treaty  or  convention 
between  the  United  States  and  any  foreign  nation  that  the  consul- 
general,  consuls,  vice-consuls  or  consular  or  commercial  agents  of 
each  nation  shall  have  exclusive  jurisdiction  of  controversies,  diflS- 
culties  or  disorders  arising  at  sea  or  in  the  waters  or  ports  of  other 
nations,  between  the  master  or  officers  and  any  of  the  crew,  or 
between  any  of  the  crew  themselves,  of  any  vessel  belonging  to  the 

1  See  also  §^  847,  5296.  ^  In  re  Manual  Ruhl,  5  Saw.  186. 


398  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

nation  represented  by  such  consular  officer,  such  stipulatiohs  shall 
be  executed  and  enforced  within  the  jurisdiction  of  the  United 
States  as  hereinafter  declared.  But  before  this  section  shall  take 
effect  as  to  the  vessels  of  any  particular  nation  having  such  treaty 
with  the  United  States,  the  President  shall  be  satisfied  that  similar 
provisions  have  been  made  for  the  execution  of  such  treaty  by  the 
other  contracting  party,  and  shall  issue  his  proclamation  to  that 
effect,  declaring  this  section  to  be  in  force  as  to  such  nation." 

Section  4080  provides  :  "  In  all  cases  within  the  purview  of  the 
preceding  section,  the  consul-general,  consul  or  other  consular  or 
commercial  authority  of  such  foreign  nation,  charged  with  the 
appropriate  duty  in  the  particular  case,  may  make  application  to 
any  court  of  record  of  the  United  States,  or  to  any  judge  thereof,  or 
to  any  commissioner  of  a  circuit  court,  setting  forth  that  such  contro- 
versy, difficulty  or  disorder  has  arisen,  briefly  stating  the  nature 
thereof  and  when  and  where  the  same  occurred,  and  exhibiting  a 
certified  copy,  extract  of  the  shipping  articles,  roll  or  other  proper 
paper  of  the  vessel,  to  the  effect  that  the  person  in  question  is  of 
the  crew  or  ship's  company  of  said  vessel ;  and  further  stating  and 
certifying  that  such  person  has  withdrawn  himself,  or  is  believed 
to  be  about  to  withdraw  himself,  from  the  control  and  discipline  of 
the  master  and  officers  of  the  vessel,  or  that  he  has  refused,  or  is 
about  to  refuse,  to  submit  to  and  obey  the  lawful  jurisdiction  of 
consular  or  commercial  authority  in  the  premises ;  and  further 
stating  and  certifying  that,  to  the  best  of  the  knowledge  and  belief 
of  the  officer  certifying,  such  person  is  not  a  citizen  of  the  United 
States.  Thereupon  such  court,  judge  or  commissioner  shall  issue 
his  warrant  for  the  arrest  of  the  person  so  complained  of,  directed 
to  the  marshal  of  the  United  States  for  the  appropriate  district,  or 
in  his  discretion  to  any  person,  being  a  citizen  of  the  United  States, 
whom  he  may  specially  depute  for  the  purpose,  requiring  the  person 
to  be  brought  before  him  for  examination  at  a  certain  time  and 
place." 

Section  4081  provides :  "  If  on  such  examination  it  is  made  to 
appear  that  the  person  so  arrested  is  a  citizen  of  the  United  States, 
he  shall  be  forthwith  discharged  from  arrest  and  shall  be  left  to  the 
ordinary  course  of  law.  But  if  this  is  not  made  to  appear,  and 
such  court,  judge  or  commissioner  finds,  upon  the  papers  heretofore 
referred  to,  a  sufficient  primd  facie  case  that  the  matter  concerns 


COMMISSIONERS.  399 

only  the  internal  order  and  discipline  of  such  foreign  vessel,  or, 
whether  in  its  nature  civil  or  criminal,  docs  not  affect  directly  the 
execution  of  the  laws  of  the  United  States,  or  the  rights  and  duties 
of  any  citizen  of  the  United  States,  he  shall  forthwith,  by  his^var- 
rant,  commit  such  person  to  prison,  where  prisoners  under  sentence 
of  a  court  of  the  United  States  may  be  lawfully  committed,  or,  in 
his  discretion,  to  the  master  or  chief  officer  of  such  foreign  vessel, 
to  be  subject  to  the  lawful  orders,  control  and  discipline  of  such 
master  or  chief  officer,  and  to  the  jurisdiction  of  the  consular  or 
commercial  authority  of  the  nation  to  which  such  vessel  belongs,  to 
the  exclusion  of  any  authority  or  jurisdiction  in  the  premises  of  the 
United  States  or  of  any  state  thereof.  No  person  shall  be  detained 
more  than  two  months  after  his  arrest,  but  at  the  end  of  that  time 
shall  be  set  at  liberty,  and  shall  not  again  be  arrested  for  the  same 
cause.  The  expenses  of  the  arrest  and  detention  of  the  person  so 
arrested  shall  be  paid  by  the  consular  officers  making  the  appli- 
cation." 

For  forms  required  under  the  provisions  of  the  foregoing  section, 
the  forms  furnished  in  connection  with  the  treatment  of  other  powers 
and  duties  of  commissioners  may  be  consulted.  The  application, 
warrant  of  arrest  and  warrant  of  commitment  are  all  similar  in 
their  formal  parts. 

§  486.  Commissioners'  authority  in  certain  cases  to  arrest  de- 
serting foreign  seamen. — Authority  is  conferred  upon  commis- 
sioners of  the  circuit  courts,  as  well  as  other  officers,  in  certain 
cases  to  arrest  seamen  deserting  from  foreign  vessels. 

Section  5280  of  the  Revised  Statutes  provides  as  follows :  "  On 
application  of  a  consul  or  vice-consul  of  any  foreign  government 
having  a  treaty  with  the  United  States,  stipulating  for  the  restora- 
tion of  seamen  deserting,  made  in  writing,  stating  that  the  person 
therein  named  has  deserted  from  a  vessel  of  any  such  government 
while  in  any  port  of  the  United  States,  and  on  proof  by  the  exhibi- 
tion of  the  register  of  the  vessel,  ship's  roll  or  other  official  docu- 
ment, that  the  person  named  belonged,  at  the  time  of  desertion,  to 
the  crew  of  such  vessel,  it  shall  be  the  duty  of  any  court,  judge, 
commissioner  of  any  circuit,  justice  or  other  magistrate  having 
competent  power  to  issue  warrants  to  cause  such  person  to  be  ar- 
rested for  examination.  If  on  examination  the  facts  stated  are 
found  to  be  true,  the  person  arrested,  not  being  a  citizen  of  the 
United  States,  shall  be  delivered  up  to  the  consul  or  vice-consul, 


400  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

to  be  sent  back  to  tbe  dominions  of  any  such  government.  No 
person  so  arrested  shall  be  detained  more  than  two  months  after 
his  arrest ;  but  at  the  end  of  that  time  shall  be  set  at  liberty,  and 
shall  not  be  again  molested  for  the  same  cause.  If  any  such  de- 
serter shall  be  found  to  have  committed  any  crime  or  ofiFence,  his 
surrender  may  be  delayed  until  the  tribunal  before  which  the  case 
shall  be  depending  or  may  be  cognizable  shall  have  pronounced 
its  sentence,  and  such  sentence  shall  have  been  carried  into  effect."  ^ 

For  appropriate  forms  required  under  this  section,  consult  similar 
forms  given  for  use  in  other  cases. 

§  487.  Commissioners  may  summon  masters  of  vessels  in  certain 
cases,  for  non-payment  of  wages. — The  Statutes  provide  that  when- 
ever the  wages  of  any  merchant  seaman  are  not  paid  within  ten 
days  after  the  time  when  the  same  ought  to  be  paid,  or  any  dis- 
pute arises  between  the  master  of  a  vessel  and  the  seamen  of  the 
same  touching  wages,  the  district  judge  of  the  judicial  district  where 
the  vessel  is,  or  in  case  his  residence  be  more  than  three  miles  from 
the  place,  or  he  be  absent  from  the  place  of  his  residence,  then  any 
judge  or  justice  of  the  peace,  or  any  commissioner  of  a  circuit  court, 
may  summon  the  master  of  such  vessel  to  appear  before  him,  to 
show  cause  why  process  should  not  be  issued  against  such  vessel, 
her  tackle,  apparel  and  furniture,  according  to  the  course  of  admi- 
ralty courts,  to  answer  for  the  wages. ^ 

It  follows  from  the  foregoing  that  some  written  application 
should  be  made  by  the  party  or  parties  seeking  the  recovery  of 
wages,  who  should  set  forth  therein  the  facts  and  circumstances 
which  would  give  the  commissioner  jurisdiction  of  the  case,  includ- 
ing either  the  absence  of  the  district  judge  from  the  place  of  his 
residence,  if  he  resides  where  the  vessel  is,  or  if  he  resides  more 
than  three  miles  from  that  place,  that  fact  should  appear  to  give 
the  commissioner  jurisdiction.  The  application  should  be  signed 
by  the  applicant  and  sworn  to  before  the  commissioner  or  other 
person  authorized  to  administer  oaths.^ 


1  See  also  Rev.  Stat.  U  4079,  4081.  Schooner  David   Faust,  1  Ben.  183; 

^  Rev.  Stat.  |  4546.  Whitman  v.    The    Ship    Neptune,    1 

^  For  construction  of  this  provision  Pet.  Ad.  183 ;   Collins  v.  Nickerson, 

and  the  following  section,  see  Steam-  Sprague   126  ;    Kief  &  Lang  v.   The 

boat  Thomas  Jefferson,  10  Wh.  428  ;  Steamboat  London,    Newb.   6  ;    The 

The  Cypress,  Blatch.  &  H.  83  -,  Free-  Schooner  Eagle,  01c.  232. 
man  v.  Baker,  Blatch.  &  H.  372  ;  The 


COMMISSIONERS.  401 

The  summons  may  be  in  the  usual  form.  If  the  master  against 
whom  the  summons  is  issued  neglects  to  appear,  or  if  appearing  he 
does  not  show  that  the  wages  are  paid,  or  otherwise  satisfied  or 
forfeited,  and  if  the  matter  in  dispute  is  not  forthwith  settled,  it  is 
the  duty  of  the  commissioner  to  forthwith  certify  to  the  clerk  of 
the  district  court  that  there  is  sufficient  cause  of  complaint  whereon 
to  found  admiralty  process ;  and  thereupon  it  becomes  the  duty  of 
the  clerk  of  such  court  to  issue  process  against  the  vessel,  and  the 
suit  will  proceed  in  the  court  and  a  final  judgment  be  given  according 
to  the  usual  course  of  admiralty  practice  in  such  cases. ^ 

If  the  master  makes  a  defence  to  the  application  the  magistrate 
is  required  to  hear  it.  He  m.ay  make  and  verify,  under  oath, 
statements  in  opposition  to  the  claims  and  demands  of  the  seamen  ; 
and  the  commissioner  may,  for  good  cause  shown,  adjourn  the  cause 
for  a  reasonable  time.  But  it  is  not  expected  that  a  commissioner 
will  enter  into  any  very  critical  or  protracted  examination  of  such 
cases,  nor  is  he  required  to  decide  difficult  questions.^  It  seems 
that  his  certificate  should  show  that  either  the  district  judge  was 
absent  or  resided  more  than  three  miles  from  the  vessel.^ 

For  form,  see  post,  "Forms  in  proceedings  before  commissioners." 

§  488.  Commissioners ;  appointment  and  povrers  under  statutes 
relating  to  equal  civil  rights. — Chapter  7  of  Title  70  of  the  Revised 
Statutes  makes  provision  for  securing  the  elective  franchise  and  civil 
rights  to  citizens.  The  more  effectually  to  secure  these  rights  and 
to  punish  offenders,  and  those  guilty  of  violating  the  rights  of  per- 
sons secured  by  these  provisions,  section  1982  of  the  Revised  Stat- 
utes provides  that  the  district  attorneys,  marshals  and  deputj 
marshals,  the  commissioners  appointed  by  the  circuit  and  territorial 
courts,  are  authorized  and  required,  at  the  expense  of  the  United 
States,  to  institute  prosecutions  against  all  persons  violating  any  of 
the  provisions  of  said  chapter,  and  to  cause  such  persons  to  be 
prosecuted.^ 

Anothor  section  further  provides  that  the  circuit  courts  of  the 
United  States  and  the  district  courts  of  the  territories,  from  time  to 
time,  shall  increase  the  number  of  commissioners  so  as  to  afford  a 
speedy  and  convenient  means  for  the  arrest  and  examination  of  per- 

^  Rev.  Stat.  ?  4547.  ^  The  Steamboat  London,  Newb.  6. 

2  5   Conk.    Ad.,  Pr.    56.     See  also         *  Rev.  Stat.  Tit.  24,  p.   347,  ^g  1977 
Oliver  v.  Alexander,  6  Pet.  143;  The     to  1991,  inclusive. 
Trial,  Blatch.  &  H.  94. 
26 


402  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

sons  charged  with  the  crimes  above  referred  to  ;  and  they  are 
authorized  and  required  to  exercise  all  the  powers  conferred  in 
reference  thereto  in  the  same  manner  as  they  are  authorized  to  ex- 
ercise them  in  reference  to  other  offences  against  the  laws  of  the 
United  States.^ 

They  are  further  authorized  to  appoint  in  writing  one  or  more 
suitable  persons,  from  time  to  time,  to  execute  all  such  warrants  or 
other  process  as  the  commissioners  may  issue  in  the  lawful  perform- 
ance of  their  duties,  and  have  power  to  call  to  their  aid  the  by- 
standers or  'posse  comitatus  of  the  proper  county,  or  so  much  of  the 
land  or  naval  force  of  the  United  States  or  of  the  militia  as  may  be 
necessary  to  the  performance  of  the  duty  with  which  they  are 
charged.^ 

§  489.  Bail  and  affidavits  in  civil  causes  may  be  taken  by  commis- 
sioners, and  stipulations  in  admiralty. — Section  945  provides  that 
bail  and  affidavits,  when  required  in  any  civil  cause  in  any  circuit 
or  district  court,  may  be  taken  by  a  commissioner  of  the  circuit 
court  for  the  district ;  and  such  acknowledgments  of  bail  and  affi- 
davits have  the  same  effect  as  if  taken  before  any  judge  of  such 
courts.^  Rule  5  in  admiralty  also  provides  that  bonds  or  stipula- 
tions in  admiralty  suits  may  be  given  and  taken  before  any  commis- 
sioner of  the  court  who  is  authorized  by  the  court  to  take  affidavits 
of  bail  and  depositions  in  cases  pending  before  the  court,  or  any 
commissioner  of  the  United  States  authorized  by  law  to  take  bail 
and  affidavits  in  civil  cases.* 

§  490.  Commissioners  may  take  depositions  de  bene  esse. — The 
testimony  of  any  witness  may  be  taken  in  any  civil  cause  depending 
in  any  district  or  circuit  court  by  deposition  de  bene  esse  before  any 
commissioner  of  a  circuit  court  when  the  witness  lives  at  a  greater  dis- 
tance from  the  place  of  trial  than  one  hundred  miles,  or  is  bound  on  a 
voyage  to  sea,  or  is  about  to  go  out  of  the  United  States,  or  out  of  the 
district  in  which  the  case  is  to  be  tried,  and  to  a  greater  distance  than 

^  Rev.  Stat.  |  1983.  arrest  of  a  debtor  in  conformity  with 

^  Rev.  Stat.  §  1984.     See  also  Rev.  state  laws:  Fulton  v.  Gilmore,  10  C. 

Stat.  §  5516.     Section  1987  provides  L.  N.  108. 

lor  an  allowance  of  fees  by  the  com-  *  But  he  cannot  authenticate  a  bond 

missioners  to  persons  executing  pro-  or  stipulation  in  admiralty  by  reciting 

cess.  that  the  sureties  appeared  before  him 

^  A  commission  has  authority  under  and  bound  themselves,  etc.,  when  in 

this   provision    to    take    affidavits    to  fact  they  never  signed  the  obligation  : 

papers  in  civil    proceedings    for   the  Sawyer  v.  Oakman,  11  Blatch.  65. 


COMMISSIONERS.  408 

one  hundred  miles  from  the  place  of  trial  before  the  time  of  trial,  or 
•when  he  is  ancient  and  infirm.^  The  conditions  which  must  exist  in 
order  to  authorize  the  taking  of  the  deposition  de  bene  esse  are: 
1st,  that  the  witness  lives  at  a  greater  distance  from  the  place  of 
trial  than  one  hundred  miles ;  2d,  or  that  he  is  bound  on  a  voyage 
to  sea  ;  3d,  or  about  to  go  out  of  the  United  States ;  4th,  or  about 
to  go  out  of  such  district  to  a  greater  distance  from  the  place  of 
trial  than  one  hundred  miles  before  the  time  of  trial ;  5th,  or  is 
ancient  and  infirm.^ 

The  taking  of  depositions  de  bene  esse  is  in  derogation  of  the 
rules  of  common  law,  and  therefore  the  statutory  provisions  author- 
izing it  are  strictly  construed.  Hence,  before  such  depositions  can 
be  used  it  is  necessary  to  show  that  the  statutory  provisions  have 
been  strictly  complied  with.^  If  one  deposition  has  been  taken, 
yet  another  may  be  taken  of  the  same  witness ;  *  and  they  may  be 
taken  outside  the  limits  of  the  district  as  well  as  within  the  district 
where  the  trial  is  had.^  But  the  mere  fact  that  a  witness  is  about 
to  depart  from  the  state,  or  liable  to  be  ordered  out  of  the  reach  of 
a  subpoena,  is  no  reason  for  taking  his  deposition  de  bene  esse.^ 

§  491.  Reasonable  notice  must  be  given. — The  statute  further 
provides  that  reasonable  notice  must  be  given  in  writing  by  the 
party  or  his  attorney  proposing  to  take  such  deposition,  to  the  op- 
posite party  or  his  attorney  of  record,  which  notice  must  state  the 
name  of  the  witness  and  the  time  and  place  of  the  taking  of  his 
deposition.  In  cases  m  rem  the  person  having  the  agency  or  pos- 
session of  the  property  at  the  time  of  seizure  shall  be  deemed  the 
adverse  party,  until  a  claim  shall  have  been  put  in  ;  and  whenever, 
by  reason  of  the  absence  of  an  attorney  of  record  or  other  reason, 
the  giving  of  the  notice  herein  required  shall  be  impracticable,  it 
shall  be  lawful  to  take  such  depositions  as  there  shall  be  urgent 
necessity  for  taking,  upon  such  notice  as  any  judge  authorized  to 
hold  courts  in  such  circuit  or  district  shall  think  reasonable  and 
shall  direct.^ 

1  Rev.  Stat.  §  863.  rls  v.  Wall,  7  How.   693 ;   Evans  v. 

2  Harris    v.  Wall,    7    How.    693 ;     Eaton,  7  Wh.  356. 

Whitney  v.  Hunt,  5  Cr.  (C.  C.)  120.  "  Cornell  w.  Williams,  20  Wall.  226. 

The  statute  does  not  apply  to  cases  ^  Patapsco  Ins.  Co.  v.  Southgate,  5 

pending  in  the  Supreme  Court :  The  Pet.  604. 

.^go,  2  Wh.  287  ;  The  London  Packet,  «  The  Samuel,  1  Wh.  9 :    Harris  v. 

2  Wh.  371.  Wall,  7  How.  693. 

'  Bell  V.  Morrison,  1  Pet.  351 ;  Har-  ''  Rev.  Stat.  |  863. 


404     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

The  service  of  the  notice,  whether  on  the  party  or  his  attorney 
should  be  personal,  and  a  service  by  leaving  a  copy  at  his  dwelling- 
house  or  usual  place  of  business  is  not  authorized.^ 

§  492.  A  party  may  waive  his  rights. — Although  as  a  general  rule 
the  statute  providing  for  the  taking  of  depositions  must  be  strictly 
pursued,  yet  if  there  should  be  a  failure  so  to  do,  a  party  for  whose 
benefit  the  provisions  were  intended  may  waive  his  right  to  the 
same.  Thus,  if  he  should  appear  and  cross-examine  witnesses  at 
the  taking  of  depositions,  or  should  consent  that  depositions  might 
be  taken  at  a  certain  time  and  place,  this  would  be  a  waiver  of  the 
notice  required  by  the  provisions  of  the  statute,  and  he  could  not 
object  to  the  depositions  thus  taken  without  a  formal  notice.^ 

The  notice  should  contain  the  title  of  the  cause  and  the  name  or 
names  of  the  witnesses  proposed  to  be  examined;^  and  if  a  depo- 
sition should  be  taken  without  the  required  notice,  it  may  be  taken 
again  on  the  required  notice.* 

§  493.  Mode  of  taking  depositions  de  bene  esse. — The  Statute 
further  provides  as  to  the  mode  of  taking  depositions  de  bene  esse, 
that  the  person  deposing  shall  be  cautioned  and  sworn  to  testify  the 
whole  truth,  and  be  carefully  examined ;  that  his  testimony  shall 
be  reduced  to  writing  by  the  magistrate  taking  the  deposition,  or 
by  himself  in  the  magistrate's  presence,  and  by  no  other  person ; 
and  that  it  shall  after  it  has  been  reduced  to  writing  be  subscribed 
by  the  deponent.^ 

The  witness  should  be  sworn  to  tell  the  whole  truth  as  far  as  he 
knows  it  respecting  the  matter  in  controversy;^  and  if  he  is  prop- 
erly sworn  it  is  not  necessary  that  he  should  be  otherwise  cautioned.'^ 
If  there  is  a  statutory  form  of  oath  at  the  place  where  the  deposi- 
tion is  taken,  tliat  may  be  followed  ;  but  if  the  witness  has  scrUples 
against  the  usual  form  of  oath,  he  may  take  that  form  which  he  re- 

*  Carrington  v.   Stimpson,  ]    Curt.  496  ;  Carrington  v.  Stimpson,  1  Curt. 

437.     If  the  notice  is  not  reasonable  437. 

the  deposition   cannot  be   read;  but  *  Goodhue    v.   Bartlett,    5  McLean 

an  hour's  notice    may  be  sufficient :  186.    ■ 

Jameson  v.  Willis,  1  Cr.  (C.  C.)  566 ;  ^  r^v.  Stat.  ?  864. 

Leiper   «;.  Bickley,  Id.  29;  Bowie  v.  ®  Wilson  Sew.  Mach.  Co.  v.  Jackson, 

Talbot,  Id.  247.  "  1  Hugh.  295  ;  Shutte  v.  Thompson,  15 

'^  Shutte  V.  Thompson,  15  Wall.  151  ;  W'all.  151  ;  United  States  v.  Smith,  4 

York    Company  i'.  Central    Kailroad  Day  121  ;  Garrett  v.  Woodward,  2  Cr. 

Co.,  3   Wall.    il3;    United  States  v.  (C.C.)  190. 

One   Case  of  Hair  Pins,  1  Paine  40U;  '  Moore  v.  Nelson,  3  McLean  383  ; 

Sage  V.  Taa>zky,  6  Cent.  L.  J.  7.  Brown  v.  Piatt,  2  Cr.  (C.  C.)  253. 

^  Claxton  V.   Adams,    1    McArthur 


COMMISSIONERS.  405 

gards  as  binding  on  his  conscience,  which  the  commissioner  can  duly 
certify.^ 

§  494.  Transmission  of  depositions  to  the  court. — The  Statute 
further  provides  for  the  tninsmission  of  the  deposition  to  the  proper 
coui't.  The  magistrate  taking  it  is  required  to  retain  it  until  he 
shall  deliver  it  with  his  own  hand  into  the  court  for  which  it  is 
taken,  or  until  it  shall  be  sealed  up  by  him  and  directed  to  such 
court;  and  it  must  remain  under  his  seal  until  opened  in  court.^ 

§  495.  What  must  appear  before  the  deposition  can  be  used. — Un- 
less it  appears  to  the  satisfaction  of  the  court  at  the  time  it  is 
proposed  to  use  the  deposition  that  the  witness  is  dead,  or  gone  out 
of  the  United  States,  or  to  a  greater  distance  than  one  hundred 
miles  from  the  place  where  the  court  is  sitting,  or  that  by  reason 
of  age,  sickness,  bodily  infirmity  or  imprisonment  he  is  unable  to 
travel  and  appear  at  court,  such  deposition  cannot  be  used  in  the 
cause.^ 

§  496.  The  deposition  must  be  reduced  to  writing  by  the  commis- 
sioner or  the  witness. — A  deposition  cannot  be  read  in  evidence 
unless  it  be  shown  that  it  was  reduced  to  writing  by  the  commis-" 
sioner  himself,  or  by  the  witness  in  his  presence.*  Ic  would  be  good, 
however,  if  the  commissioner  should  certify  that  it  was  reduced  to 
writing  by  himself  and  the  witness  in  his  presence.^  But  the  mag- 
istrate cannot  authorize  any  one  but  the  witness  to  reduce  the  tes- 
timony to  writing  ;^  it  must  be  signed  by  the  witness,  or  it  cannot 
be  read  in  evidence.^  Each  interrogatory  should  be  at  least  sub- 
stantially answered,  otherwise  it  may  be  fatal  to  the  deposition;*^ 
and  the  same  rule  prevails  which  governs  on  the  oral  examination 
of  a  witness  on  a  trial,  in  reference  to  compelling  the  answer  of 
witnesses.^ 

§  497.  Certificate  of  the  commissioner  to  deposition. — The  com- 
missioner or  other  magistrate  should  attach  to  the  deposition  his 
certificate  of  the  reasons  for  taking  it,  and  the  notice,  if  any,  given 
to  the  adverse  party. 

1  Wilson    Sewing    Machine    Co.    v.  ^  Marston  v.  McRea,  Hemp.  689. 

Jackson,  1  Hugh.  295.  '  Thorpe  v.  Simmons,  2  Cr.  (C.  C.) 

^  Rev.  Stat.  P65.  195. 

^  Id.  8  Hurst  V.  McNeil,  1  Wash.  (C.  C.) 

*  Cook  V.  Burnley,    11  Wall.   659;  70;  Winthrop  v.   Ins.   Co.,  2  Id.  7; 

Bell  V.  Morrison,  1  Pet.  351.  Dodge  v.  Israel,  4  Id.  323. 

^  Bussard  v.  Catalino,  2  Cr.  (C.  C.)  »  In  re  Judson,  3  Blatch.  148. 
421. 


406  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

The  certificate  will  be  prima  facie  evidence  of  the  oflScial  char- 
acter of  the  magistrate,  if  accompanied  by  the  usual  authentica- 
tion of  such  papers  before  him.  The  facts  calling  for  the  exercise 
of  the  authority  should  appear  upon  the  face  of  the  instrument, 
and  not  be  left  to  parol  proof. 

The  return  should  show  that  he  administered  the  oath  to  the 
Avitness,  and  where  the  deposition  was  taken,  so  that  it  may  appear 
that  the  direction  of  the  commissioner  was  complied  with,  and  that 
it  was  taken  in  conformity  with  the  notice  given,  if  any ;  and 
that  the  Avitness  lived  more  than  one  hundred  miles  from  the  place 
of  trial,  or  some  other  ground  for  taking  the  deposition  ;  and  that 
he  or  the  witness  reduced  the  testimony  to  writing,  and  if  the  lat- 
ter, that  it  was  done  in  his  presence ;  and  any  paper  or  document 
given  in  evidence  or  annexed  to  the  deposit^ion  as  a  part  of  the  tes- 
timony should  be  duly  authenticated.^ 

The  certificate  of  the  officer  who  took  the  deposition  that  the 
witness  lived  more  than  one  hundred  miles  from  the  place  of  trial 
is  j^riwa  facie  evidence  of  that  fact.^  But  the  reasons  for  the 
taking  of  the  deposition  may  be  contained  in  the  testimony  of  the 
Avitness,  as  all  the  grounds  for  taking  the  same  might  well  be  pre- 
sumed to  be  known  to  him.  He  would  be  likely  to  know  if  he 
liA'ed  over  one  hundred  miles  from  the  place  of  trial,  or  if  not,  his 
residence  being  fixed  the  court  might  take  judicial  notice  of  the  fact. 
So  he  would  know  whether  or  not  he  Avas  bound  on  a  voyage  at 
sea,  or  about  to  go  out  of  the  United  States,  or  out  of  the  district 
to  a  greater  distance  than  one  hundred  miles  from  the  place  of 
trial,  and  of  his  age  and  the  extent  of  his  infirmity.  His  evidence 
in  relation  to  these  matters  ought  to  be  considered  of  a  higher 
character  than  the  mere  certificate  of  the  magistrate,  and  more 
than  prima  facie  evidence.  Such  testimony  being  returned  as  a 
part  of  the  deposition,  with  the  proper  certificate  of  the  magistrate 
as  to  other  matters,  ought  to  be  satisfactory  of  the  right  of  the 
party  seeking  the  deposition  to  have  the  same  taken,  and  of  the 
right  to  have  the  same  read  in  eA'idence,  provided  at  the  time  of 
trial  the  witness  is  dead,  or  gone  out  of  the  United  States,  or  to  a 
greater  distance  than  one  hundred  miles  from  the  place  where  the 

1  Harris    v.    Wall,    5    How.    693  ;  ^  Patapsco  Ins.  Co.  v.   Southgate,  5 

Rhoads  v.  Selin,  4  Wash.  (0.  C.)  715  ;  Pet.  604  ;  Merrill  v.  Dawson,  1 1  How. 

Patapsco  Ins.  Co.  v.  Southgate,  5  Pet.  375  ;  Tooker  v.  Thompson,  3  McLean 

604 ;  Bell  V.  Morrison,  1  Pet.  356.  92. 


COMMISSIONERS.  407 

court  is  sitting,  or  that  by  reason  of  age,  sickness,  bodily  infiraiity 
or  imprisonment,  he  is  unable  to  travel  or  appear  at  court.  But  it 
has  been  held  that  if  the  officer  who  takes  the  deposition  does  not 
in  his  certificate  assign  any  reason  for  taking  it,  the  deposition 
will  be  suppressed.^ 

§  498.  What  must  be  shown  on  the  trial  to  ■warrant  the  reading  of 
a  deposition. — The  Statute  expressly  provides  that  no  deposition  de 
bene  esse  shall  be  read  in  evidence  on  the  trial  of  a  cause  unless  it 
is  shown — 

1.  That  the  witness  is  dead; 

2.  Or  gone  out  of  the  United  States  ; 

3.  Or  to  a  greater  distance  than  one  hundred  miles  from  the 
place  where  the  court  is  sitting ; 

4.  Or  that,  by  reason  of  age,  sickness,  bodily  infirmity  or 
imprisonment,  he  is  unable  to  travel  and  appear  at  court. ^ 

If  at  the  time  the  deposition  is  taken  he  lives  more  than  one 
hundred  miles  from  the  place  of  trial,  but  before  the  trial  occurs  he 
moves  to  a  place  less  than  that  distance  from  the  place  of  trial,  his 
personal  attendance  would  be  required,  unless  other  ground  exists 
for  reading  the  deposition,  such  as  residence  without  the  United 
States,  or  age,  sickness  or  bodily  infirmity  unfitting  him  for  travel 
or  attendance  upon  the  court. ^ 

For  forms  required  in  taking  depositions  de  bene  esse,  see  post, 
"Forms  in  proceedings  before  commissioners." 

§  499.  Compelling  witnesses  to  appear  and  testify. — The  Statute 
provides  that  witnesses  duly  summoned  to  appear  before  the  magis- 
trate may  be  compelled  to  appear  and  testify. 

This  compulsory  power  exists  in  the  court  of  the  district  in  which 
the  examination  is  taken.  The  power  to  compel  is  by  the  means 
and  instrumentalities  in  force  in  the  courts  of  the  state  for  compel- 
ling the  attendance  and  the  testimony  of  witnesses.  These  include 
the  process  of  subpoena  duces  tecum,  the  subpoena  ad  testificandum, 
the  writ  of  habeas  corpus  testificandum,  and  the  writ  of  attachment. 

1  Shutte  V.  Thompson,  15  Wall.  151  ;  G04  ;  The  Samuel,  1  Wh.  9  ;  Weed  v. 

Woodward  v.  Hull,  2  Cr.  (C.  C.)  235  ;  Kellogs,  6  McLean  44  ;  Bowie  v.  Tal- 

Sa2;ev.  Tauszky,  6  Cent.  L.  J.  7  ;  Jones  bot,  1  Cr.  (C.  C.)  247. 

V.  Knowles,  1  Cr.  (C.  C.)  523  ;  Dun-  »  Stein   v.   Bowman,   13    Pet.  209  ; 

kle  V.  Worcester,  5  Biss.  102.  Bamet  v.  Day,  3  Wash.    (C.  C.)   243  ; 

•'  Harris  v.  AVall,  7  How.  693  ;  The  Pettibone  v.  Derringer,  4  Wash.  (C.  C.) 

Patapsco  Ins.  Co.  v.  Southgate,  5  Pet.  243. 


408     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

These  writs  must  issue  from  a  court  of  the  district,  on  a  proper 
application  therefor.' 

The  application  for  compulsory  process  should  show  that  the 
case  is  one  in  which  a  de  bene  esse  examination  is  proper  ;  that  the 
commissioner  has  jurisdiction  of  the  matter;  and  other  facts  author- 
izing the  issuing  of  process  against  the  witness,^  and  especially,  if 
an  attachment  is  asked,  the  party  asking  for  it  should  file  affidavits 
showing  that  the  witness  has  been  guilty  of  a  contempt.^ 

§  500.  Commissioners  may  take  oaths  and  acknowledgments  in 
certain  cases  ;  also  depositions  in  admiralty  under  Rule  49. — oection 
1878  of  the  Revised  Statutes  provides:  "In  all  cases  in  which, 
under  the  laws  of  the  United  States,  oaths  or  acknowledgments  may 
now  be  taken  or  made  before  any  justice  of  the  peace  of  any  state 
or  territory  or  in  the  District  of  Columbia,  they  may  hereafter  be  also 
taken  or  made  by  or  before  any  notary  public  duly  appointed  in 
any  state,  district  or  territory,  or  any  of  the  commissioners  of  the 
circuit  court,  and  when  certified  under  the  hand  and  official  seal  of 
such  notary  or  commissioner,  shall  have  the  same  force  and  effect 
as  if  taken  or  made  by  or  before  such  justice  of  the  peace." 

They  may  also  take  further  proof  on  appeal  of  admiralty  cases 
in  the  circuit  court,  by  deposition,  upon  oral  examination  and  cross- 
examination,  or,  when  ordered  by  the  court  and  a  commission  issues, 
upon  written  interrogatories  and  cross-interrogatories.  In  the  for- 
mer case  notice  must  be  given  as  provided  by  the  general  rule, 
the  time  of  which  may  be  extended  or  diminished  by  the  court.* 

§  501.  Commissioners  may  issue  search  warrants  in  certain  cases. 
— The  several  judges  of  the  circuit  and  district  courts,  and  com- 
missioners of  the  circuit  courts,  may  within  their  respective  juris- 
dictions issue  a  search  warrant  authorizing  any  internal  revenue 
officer  to  search  any  premises  within  the  same,  if  such  officer  makes 
oath  in  writing  that  he  has  reason  to  believe,  and  does  believe,  that 
fraud  upon  the  revenue  has  been  or  is  being  committed  upon  or  by 
the  use  of  said  premises.^ 

For  form  of  affidavit  and  search  warrant  in  such  cases,  see  post^ 
"  Forms  in  proceedings  before  commissioners." 

^  Ex  parte  Wm.  S.  Humphreys,  2  ^  Ex  parte  Win.  Judson,  3  Blatch. 

Blatch.  228  ;  United  States  v.  Tiiden,  148. 

25  I.  R.  R.  352.  *  Admiralty  Rule  49. 

2  Ex  parte  Elisha  Peck,  3  Blatch.  ^  Rev.  Stat.  §  3462. 
113. 


COMMISSIONERS.  409 

§  502.  Commissioners  may  issue  warrants  for  the  arrest  of  fugitives 
for  extradition. — In  reference  to  the  arrest  and  extradition  of  fugi- 
tives from  justice  the  statute  provides  :  "  Whenever  there  is  a  treaty 
or  convention  for  extradition  between  the  government  of  the  United 
States  and  any  foreign  government,  any  justice  of  the  Supreme 
Court,  cirtjuit  judge,  district  judge,  commissioner  authorized  so  to 
do  by  any  of  the  courts  of  the  United  States  or  judge  of  a  court 
of  record  of  general  jurisdiction  of  any  state,  may,  upon  complaint 
made  under  oath  charging  any  person  found  within  the  limits  of 
any  state,  district  or  territory  with  having  committed  within  the 
jurisdiction  of  any  such  foreign  government  any  of  the  crimes  pro- 
vided for  by  such  treaty  or  convention,  issue  his  warrant  for  the 
apprehension  of  the  person  so  charged,  that  he  may  be  brought  be- 
fore such  justice,  judge  or  commissioner,  to  the  end  that  the  evidence 
of  criminality  may  be  heard  and  considered.  If  on  such  hearing 
he  deems  the  evidence  sufficient  to  sustain  the  charge,  under  the 
provisions  of  the  proper  treaty  or  convention,  he  shall  certify  the 
same,  together  with  a  copy  of  all  the  testimony  taken  before  him, 
to  the  Secretary  of  State,  that  a  warrant  may  issue  upon  the  requi- 
sition of  the  proper  authorities  of  such  foreign  government  for  the 
surrender  of  such  person,  according  to  the  stipulations  of  the  treaty 
or  convention  ;  and  he  shall  issue  his  warrant  for  the  commitment 
of  the  person  so  charged  to  the  proper  jail,  there  to  remain  until 
such  surrender  shall  be  made."  ^  The  statute  further  provides: 
"  In  every  case  of  complaint  and  of  a  hearing  upon  the  return  of 
the  warrant  of  arrest,  any  depositions,  warrants  or  other  papers 
offered  in  evidence  shall  be  received  for  the  purpose  of  such  hear- 
ing if  they  shall  be  properly  and  legally  authenticated,  so  as  to 
entitle  them  to  be  received  as  evidence  of  the  criminality  of  the 
person  so  apprehended  by  the  tribunals  of  the  foreign  country  from 
which  the  accused  party  shall  have  escaped,  and  copies  of  any  such 
depositions,  warrants  or  other  papers  shall,  if  authenticated  accord- 
ing to  the  law  of  such  foreign  country,  be  in  like  manner  received 
as  evidence ;  and  the  certificate  of  the  principal  diplomatic  or  con- 
sular officer  of  the  United  States  resident  in  such  foreign  country 
shall  be  proof  that  any  such  deposition,  warrant  or  other  paper,  or 
copy  thereof,  is  authenticated  in  the  manner  required  by  this  sec- 
tio!i."2 

1  Rev.  Stat,  g  5270.  '  Rev.  Stat.  |  5271. 


410  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

So  far  as  the  duty  of  a  commissioner,  in  connection  with  the  ex- 
tradition of  foreign  criminals,  is  concerned,  it  is  indicated  by  the 
two  forenroing  sections  of  the  Revised  Statutes.  It  has  been  su<t- 
gested  that  the  better  course  would  be  to  first  make  a  demand  for  the 
fugitive,  after  ascertaining  his  residence  within  the  United  States 
from  the  executive  department  of  the  government,  and  to  secure  a 
mandate  from  the  President,  before  the  judiciary  is  called  upon  to 
act:'  but  such  a  course  of  practice  is  not  imperative.^ 

§  503.  There  must  be  a  complaint  under  oath. — The  Statute  re- 
quires in  such  cases  a  complaint  under  oath,  charging  some  person 
within  the  limits  of  the  state  with  having  committed  some  crime  in 
a  foreign  country,  between  which  and  the  United  States  there  is  a 
treaty  or  convention  for  extradition.  The  complaint  should  set 
forth  these  facts,  and  particularly  the  offence  charged  or  the  mate- 
rial features  of  it,  so  that  the  magistrate  may  determine  whether 
the  oft'ence  is  among  those  enumerated  in  the  treaty  or  convention 
of  extradition  ;  ^  and  the  complaint  should  recite  the  treaty  and  the 
appointment  of  the  commissioner  by  some  circuit  court  of  the 
United  States.* 

For  form  of  complaint,  see  post,  "  Forms  in  proceedings  before 
commissioners." 

§  504.  What  the  warrant  of  arrest  should  contain. — The  warrant 
for  the  arrest  of  an  alleged  fugitive  from  justice  should,  in  extradi- 
tion cases,  show  on  its  face  that  the  commissioner  issuino-  it  was 
duly  authorized  to  do  so ;  and  it  should  also  recite  the  treaty  under 
which  the  extradition  is  requested.^ 

For  form  of  warrant  of  arrest,  see  post,  "  Forms  in  proceedings 
before  commissioners." 

§  505.  What  the  magistrate  must  certify. — Under  the  provisions 
of  the  statute  it  is  also  the  duty  of  the  commissioner  or  other  act- 
ing magistrate  to  certify  the  proceedings  before  him,  together  with 
a  copy  of  all  the  evidence,  to  the  Secretary  of  State,  if  he  deems 
the  evidence  sufficient  to  sustain  the  charge  under  the  proper  treaty 
or  convention. 

Under  this  provision  it  would  be  necessary  for  the  commissioner 
or  other  magistrate   to  take  down  in  writing  all  the  oral  testimony 

1  In  re  Kaine,  3  Blatch.  9.  *  In  re  McDonnell,  11  Blatch.  79. 

^  In  re  McDonnell,  11  Blatch.  79;  *  In  re  Farey,  7  Blatch.  34  5  In  re 
6  Opinions  of  A.  G.  91.  McDonnell,  11  Blatch.  79. 

'  In  re  Heinrich,  .5  Blatch.  425  ;  In 
re  Kaine.  3  Blatch.  9. 


COMMISSIONERS.  411 

offered  before  him  in  a  narrative  form,  and  to  preserve  a  record  of 
all  the  objections  made  to  the  admissibility  of  evidence,  whether  oral 
or  documentary,  and  his  rulings  thereon  ;  and  it  would  be  advisable 
to  read  over  the  evidence  given  by  each  witness  to  him,  and  to  have 
him  sign  the  same.^  Although  the  original  documents  in  such  cases 
may  be  in  a  foreign  language,  the  parties  seeking  the  extradition  of 
the  fugitive  should  furnish  an  accurate  translation  of  the  same 
by  some  competent  witness,  with  the  affidavit  of  the  translator  to 
the  accurate  translation  thereof,  before  they  can  be  received  in 
evidence. 

There  is  another  reason  for  requiring  the  commissioner  to  keep 
an  accurate  record  of  the  proceedings,  complaint,  testimony,  docu- 
ments, etc.,  and  that  is,  to  enable  the  proper  court  to  review  the 
proceedings  and  finding  on  habeas  corpus  or  certiorari  on  a  proper 
application  therefor.^ 

For  form  of  certificate,  see  iJost,  "  Forms  in  proceedings  before 
commissioners." 

§  506.  Commissioners'  fees ;  accounts  ;  vouchers.- — The  folloAV- 
ing  fees,  and  no  other  compensation,  will  be  taxed  and  allowed  to 
commissioners,  except  in  cases  otherwise  provided  by  law  : 

1.  For  administering  an  oath,  ten  cents. 

2.  For  taking  an  acknowledgment,  twenty-five  cents. 

3.  For  hearing  and  deciding  on  criminal  charges,  five  dollars  a 
day  for  the  time  necessarily  employed. 

4.  For  attending  to  a  reference  in  a  litigated  matter,  in  a  civil 
cause  at  law,  in  equit}^  or  in  admiralty,  in  pursuance  of  an  order 
of  the  court,  three  dollars  a  day. 

5.  For  taking  and  certifying  depositions  to  file,  twenty  cents  for 
each  folio.^ 

6.  For  each  copy  of  the  same  furnished  to  a  party  on  request, 
ten  cents  for  each  folio. 

^  In  re  Heinrich,  5  Blatch.  303.  Sum.   92 ;    In  re   Francois   Farez,    7 

'^  In  re  McDonnell,   11   Blatch.  79.  Blatch.  345. 

See  also  for  suggestions  as  to  proper  ^  Folio,  in  this  connection,  means 

practice  and  expositions  of  the  statutes  one    hundred   words,  counting    each 

on  this  subject,  The  British  Prisoners,  figure  as  a  word.     Where   there  are 

I  Wood  &  M.  66 ;  In  re  Joseph  Steep,  over  fifty  and  less  than  one  hundred 

II  Blatch.  124;  In  re  Thomas,  12  words,  they  must  be  counted  as  one 
Blatch.  37U ;  In  re  Giacomo,  12  Id.  folio;  but  a  less  number  than  fifty 
390:  United  States  v.  Lawrence,  13  words  cannot  be  counted,  except 
Id.  295  ;  In  re  Kaine,  14  How.  103;  when  the  whole  statute,  notice  or 
Case  of  Jose  Ferreirados  Santos,  2  order  contains  less  than  fifty  words : 
Brock.  493  ;  United  States  v.  Davis,  2  Rev.  Stat.  ^  854. 


412  FEDERAL    PLEADING,    PKACTICE    AND    PROCEDURE. 

7.  For  issuing  any  warrant  or  writ,  and  for  any  other  services, 
the  same  compensation  as  is  allowed  to  clerks  for  like  services.^ 

8.  For  issuing  any  warrant  under  the  tenth  article  of  the  treaty 
of  August  9,  1842,  between  the  United  States  and  the  Queen  of 
the  United  Kingdom  of  Great  Britain  and  Ireland,  against  any 
person  charged  with  any  crime  or  offence  set  forth  in  said  article, 
two  dollars. 

9.  For  issuing  any  warrant  under  the  provisions  of  the  conven- 
tion for  the  surrender  of  criminals,  between  the  United  States  and 
the  King  of  the  French,  concluded  at  Washington,  November  9, 
1843,  two  dollars. 

10.  For  hearing  and  deciding  upon  the  case  of  any  person  charged 
with  any  crime  or  offence,  and  arrested  under  the  provisions  of  said 
treaty  or  of  said  convention,  five  dollars  a  day  for  the  time  neces- 
sarily employed. 

11.  For  the  examination  and  certificate  in  cases  of  applications 
of  poor  convicts  imprisoned  for  non-payment  of  a  fine  or  fine  and 
costs,  five  dollars  a  day  for  the  time  necessarily  employed.^ 

§  507.  Fees  as  chief  supervisor  of  elections. — We  have  hereto- 
fore stated  that  one  of  the  commissioners  of  the  circuit  court  of  the 
district  may  be  named  and  appointed  by  the  circuit  court  of  the 
district  as  chief  supervisor  of  elections  of  the  judicial  district  of 
which  he  is  a  commissioner. 

For  his  compensation  in  such  cases  he  is  allowed  and  paid  as 
follows : 

1.  For  filing  and  caring  for  every  return,  report,  record,  docu- 
ment or  other  paper  required  to  be  filed  by  him  under  any  of  the 
provisions  of  sections  2025,  2026  and  2027  of  the  Revised  Statutes, 
ten  cents. 

2.  For  affixing  a  seal  to  any  paper,  record,  report  or  instrument, 
twenty-five  cents. 

3.  For  entering  and  indexing  the  records  of  his  office,  fifteen 
cents  per  folio. 

4.  For  arranging  and  transmitting  to  Congress,  as  provided  for 
by  law,  any  report,  statement,  record,  return  or  examination,  for 
each  folio,  fifteen  cents ;  and  for  any  copy  thereof,  or  of  any  paper 
on  file,  a  like  sum. 

^  For  fees  of  clerks,  see  post,  ch.         ^  Rev.  Stat.  |  847. 
sxiii. 


COMMISSIONERS.  413 

§  o08.  How  to  obtain  an  allowance  and  payment  of  commis- 
sioners' fees. — United  States  commissioners  must  forward  their 
accounts,  duly  verified  by  oath,  to  the  district  attorneys  of  their  re- 
spective districts,  by  whom  they  shouhl  be  submitted  for  approval  in 
open  court,  and  in  the  presence  of  the  district  attorney  or  his  sworn 
assistant,  whose  presence  is  required  to  be  noted  on  the  record,  and 
prove  in  open  court,  to  the  satisfaction  of  the  court,  by  his  own 
oath  or  that  of  other  persons  having  knowledge  of  the  facts,  that 
the  services  therein  charged  have  been  actually  and  necessarily 
performed  as  therein  stated  ;  and  the  court  must  thereupon  cause 
to  be  entered  of  record  an  order  approving  or  disapproving  the 
account,  as  may  be  according  to  law  and  just.  But  the  accounts 
thus  approved  or  disapproved  are  still  subject  to  revision  by  the 
accounting  officers  of  the  treasury.^ 

§  509.  The  accounts  of  commissioners  and  other  ministerial  offi- 
cers subject  to  revision  by  the  accounting  officers  of  the  Treasury 
Department. — Section  846  of  the  Revised  Statutes  provides  :  "The 
accounts  of  district  attorneys,  clerks,  marshals  and  commissioners 
of  the  circuit  courts  shall  be  examined  and  certified  by  the  district 
judge  of  the  district  for  which  they  are  appointed,  before  they 
are  presented  to  the  accounting  officers  of  the  Treasury  Depart- 
ment for  settlement.  They  shall  then  be  subject  to  revision  upon  their 
merits  by  said  accounting  officers,  as  in  case  of  other  public  accounts." 

It  will  be  manifest  from  the  foregoing  provisions  that  the  cer- 
tificate of  the  judge  is  merely  prima  facie  evidence  of  the  correct- 
ness of  the  account,  and  the  accounting  officers  of  the  Treasury 
Department  may  reject  the  whole  or  any  item  or  items  of  the 
account.^ 

For  form  of  account,  see  post,  "  Forms  in  proceedings  before 
commissioners." 

§  510.  The  practice  and  procedure  on  preliminary  examinations 
before  commissioners  applicable  generally. — The  Statute  provides 
not  only  for  the  arrest  and  preliminary  examination  of  offenders 
against  the  United  States  by  a  commissioner  of  a  circuit  court, 
but  "by  any  chancellor,  judge  of  the  supreme  or  inferior  court, 
chief  or  first  judge  of  common  pleas,  mayor  of  a  city,  justice  of  the 

1  Act  Feb.  22,  1875;  18  Stat.  L.,  M.  184;  United  States  v.  Ingersoll, 
C.  95,  §  I.  Crabbe  135. 

2  United   States  v.  Smith,   1  W.  & 


414     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

peace  or  other  magistrate  of  any  state  where  he  may  be  found,  and 
agreeable  to  the  usual  mode  of  process  against  offenders  in  such 
state."  The  general  mode  of  procedure  which  we  have  indicated  in 
this  chapter,  for  commissioners  of  the  circuit  courts,  would  be 
equally  applicable  to  other  magistrates  in  similar  cases. 


CHAPTER  XX. 

PROCEDURE  IN  CRIMINAL  CASES. 

§  511.  Practice  in  criminal  cases. — We  have  in  the  preceding 
chapter  pointed  out  the  practice  and  procedure  in  certain  cases 
where  the  offenders  against  the  United  States  may  be  brought 
before  circuit  court  commissioners  and  other  magistrates  designated 
for  this  purpose,  for  a  preliminary  examination  into  the  charges 
preferred  against  them,  under  section  1014  of  the  Revised  Statutes, 
which  authorizes  an  arrest,  examination  and  discharge  or  imprison- 
ment or  bail  of  such  offenders  by  such  magistrates,  as  the  case  may 
require,  for  their  appearance  for  trial  before  such  court  of  the 
United  States  as  by  law  has  cognizance  of  the  offence ;  and  we 
now  proceed  to  consider  the  practice  and  procedure  in  such  courts 
in  criminal  cases. ^ 

§  512.  Provisions  of  the  statutes  for  criminal  procedure. — The 
Statutes  of  the  United  States  provide : 

Indictments. — Sec.  1021.  No  indictment  shall  be  found,  nor 
shall  any  presentment  be  made,  without  the  concurrence  of  at  least 
twelve  grand  jurors. 

Offences  against  the  elective  franchise. — Sec.  1022.  All 
crimes  and  offences  committed  against  the  provisions  of  chapter 
7,  title  "Crimes,"  which  are  not  infamous,  may  be  prosecuted 
either  by  indictment  or  by  information  filed  by  a  district  attorney. 

Perjury  before  a  court-martial. — Sec.  1023.  In  prosecutions 
for  perjury  committed  on  examination  before  a  naval  general  court- 
martial,  or  for  the  subornation  thereof,  it  shall  be  sufiicient  to  set 
forth  the  offence  charged  on  the  defendant,  without  setting  forth  the 

^  We  have  already  considered  the  United    States,  or    a     circuit    court, 

jurisdiction  of    the   circuit    and  dis-  or  by  a  justice  of  the  Supreme  Court, 

trict  courts  in  such  cases;  see  ante,  a  circuit  judge  or  a  judge  of  a  district 

§§     35,     138,     139,     140,    141,    142.  court,  who  may  exercise  their  discre- 

It   may  be   observed   that,  although  tion  therein,  having  regard  to  the  na- 

bail  cannot  be  taken  by  a  circuit  court  ture  and  circumstances  of  the  oifence, 

commissioner,  or  the  magistrates  pro-  and  of  the  evidence  and  the  usages  of 

vided  by  section  1014  of  the  Revised  the  law  :  Rev.  Stat.  §    1016;    United 

Statutes,  where  the  punishment  may  States   v.   Burr,    Burr's    Trial    310; 

be  death,  but  in  such  cases  it  may  be  United  States  v.  Hamilton,  3  Dall.  17. 
taken  by  the   Supreme  Court  of   the 


416  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

authority  by  wliich   the  court  was  held,  or  the  particular  matters 
brought  before,  or  intended  to  be  brought  before,  said  court. 

Charges  joined  in  one  indictment. — Sec.  1024.  When  there 
are  several  charges  against  any  person  for  the  same  act  or  transac- 
tion, or  for  two  or  more  acts  or  transactions  connected  together,  or 
for  two  or  more  acts  or  transactions  of  the  same  class  of  crimes  or 
offences,  which  may  be  properly  joined,  instead  of  having  several 
indictments  the  whole  may  be  joined  in  one  indictment  in  separate 
counts;  and  if  two  or  more  indictments  are  found  in  such  cases,  the 
court  may  order  them  to  be  consolidated. 

Indictments;  defects  of  form. — Sue.  1025.  No  indictment 
found  and  presented  by  a  grand  jury  in  any  district  or  circuit  or 
other  court  of  the  United  States  shall  be  deemed  insufficient,  nor 
shall  the  trial,  judgment  or  other  proceeding  thereon  be  affected  by 
reason  of  any  defect  or  imperfection  in  matter  of  form  only,  which 
shall  not  tend  to  the  prejudice  of  the  defendant. 

Judgment  on  demurrer  to  an  indictment. — Sec.  1026.  In 
every  case  in  any  court  of  the  United  States  where  a  demurrer  is 
interposed  to  an  indictment,  or  to  any  count  or  counts  thereof,  or  to 
any  information,  and  the  demurrer  is  overruled,  the  judgment  shall 
be  respondeat  ouster;  and  thereupon  a  trial  maybe  ordered  at 
the  same  term,  or  a  continuance  may  be  ordered,  as  justice  may 
require. 

Several  indictments  against  the  same  person;  one  writ 
sufficient. — See.  1027.  When  two  or  more  charges  are  made  or  two 
or  more  indictments  are  found  against  any  person,  only  one  writ  or 
warrant  shall  be  necessary  to  commit  him  for  trial ;  and  it  shall  be 
sufficient  to  state  in  the  writ  the  name  or  general  character  of  the 
offences,  or  to  refer  to  them  only  in  very  general  terms. 

Copy  of  writ  to  be  jailer's  authority. — Sec.  1028.  When- 
ever a  prisoner  is  committed  to  a  sheriff  or  jailer  by  virtue  of  a 
writ,  warrant  or  mittimus,  a  copy  thereof  shall  be  delivered  to 
such  sheriff  or  jailer  as  his  authority  to  hold  the  prisoner,  and  the 
original  writ,  warrant  or  mittimus  shall  be  returned  to  the  proper 
court  or  officer,  with  the  officer's  return  thereon. 

Writ  for  removal  of  a  prisoner  from  one  district,  to  an- 
other.— Sec.  1029.  Only  one  writ  or  warrant  is  necessary  to  re- 
move a  prisoner  from  one  district  to  another.  One  copy  thereof 
may  be  delivered  to  the  sheriff  or  jailer  from  whose  custody  the 


CRIMINAL    CASES.  417 

prisoner  is  taken,  and  another  to  the  sheriff  or  jailer  to  whose  cus- 
tody he  is  committed,  and  the  original  writs,  with  the  marshal's 
return  thereon,  shall  be  returned  to  the  clerk  of  the  district  to 
which  he  is  removed. 

No  WRIT  NECESSARY  TO  BRING  INTO  COURT  A  PERSON  IN  CUS- 
TODY.— Sec.  1030.  No  writ  is  necessary  to  bring  into  court  any 
prisoner  or  person  in  custody,  or  for  remanding  him  from  the  court 
into  custody ;  but  the  same  shall  be  done  on  the  order  of  the  court 
or  district  attorney,  for  which  no  fees  shall  be  charged  by  the 
clerk  or  marshal. 

Peremptory  challenges. — Sec.  1031.  If,  in  the  trial  of  a  cap- 
ital oftence,  the  party  indicted  peremptorily  challenges  jurors 
above  the  number  allowed  him  by  law,  such  excess  of  challenges 
shall  be  disallowed  by  the  court,  and  the  cause  shall  proceed  for 
trial  in  the  same  manner  as  if  they  had  not  been  made.  (See  §  819.) 

Prisoners  standing  mute,  etc. — Sec.  1032.  When  any  person 
indicted  for  any  offence  against  the  United  States,  whether  capital 
or  otherwise,  upon  his  arraignment  stands  mute,  or  refuses  to  plead 
or  answer  thereto,  it  shall  be  the  duty  of  the  court  to  enter  the 
plea  of  not  guilty  on  his  behalf,  in  the  same  manner  as  if  he  had 
pleaded  not  guilty  thereto.  And  wherf  the  party  pleads  not  guilty, 
or  such  plea  is  entered  as  aforesaid,  the  cause  shall  be  deemed  at 
issue,  and  shall,  without  further  form  or  ceremony,  be  tried  by  a 

jury- 

Copy   of  indictment,   etc.,  delivered    to    prisoner. — Sec. 

1033.  When  any  person  is  indicted  of  treason,  a  copy  of  the  indict- 
ment and  a  list  of  the  jury,  and  of  the  witnesses  to  be  produced  on  the 
trial  for  proving  the  indictment,  stating  the  place  of  abode  of  each 
juror  and  witness,  shall  be  delivered  to  him  at  least  three  entire  days 
before  he  is  tried  for  the  same.  When  any  person  is  indicted  of 
any  other  capital  offence,  such  copy  of  the  indictment  and  list  of 
the  jurors  and  witnesses  shall  be  delivered  to  him  at  least  two 
entire  days  before  the  trial. 

Counsel  and  witnesses  for  defendant. — Sec.  1034.  Every 
person  who  is  indicted  of  treason,  or  other  capital  crime,  shall  be 
allowed  to  make  his  full  defence  by  counsel  learned  in  the  law  ;  and 
the  court  before  which  he  is  tried,  or  some  judge  thereof,  shall  im- 
mediately, upon  his  request,  assign  to  him  such  counsel,  not  ex- 
ceeding two,  as  he  may  desire,  and  they  shall  have  access  to  him  at 


418  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

all  seasonable  hours.  He  shall  be  allowed  in  his  defence  to  make 
any  proof  that  he  can  produce  by  lawful  witnesses,  and  shall  have 
the  like  process  of  the  court  to  compel  his  witnesses  to  appear  at 
his  trial  as  is  usually  granted  to  compel  witnesses  to  appear  on 
behalf  of  the  prosecution. 

Verdict  of  less  offence  than  charged. — Sec.  1035.  In  all 
criminal  causes  the  defendant  may  be  found  guilty  of  any  offence 
the  commission  of  which  is  necessarily  included  in  that  with  which 
he  is  charged  in  the  indictment,  or  may  be  found  guilty  of  an 
attempt  to  commit  the  offence  so  charged ;  provided,  that  such 
attempt  be  itself  a  separate  offence. 

Verdict  against  part  of  several  joint  defendants. — Sec. 
1036.  On  an  indictment  against  several,  if  the  jury  cannot  agree 
upon  a  verdict  as  to  all,  they  may  render  a  verdict  as  to  those  in 
regard  to  whom  they  do  agree,  on  which  a  judgment  shall  be  en- 
tered accordingly ;  and  the  cause  as  to  the  other  defendants  may 
be  tried  by  another  jury. 

Indictments  remitted  by  circuit  and  district  courts  to 
EACH  OTHER. — Sec.  1037.  Whenever  the  district  attorney  deems  it 
necessary,  any  circuit  court  may,  by  order  entered  on  its  minutes, 
remit  any  indictment  pending  therein  to  the  next  session  of  the 
district  court  of  the  same  district,  where  the  offence  charged  in  the 
indictment  is  cognizable  by  the  said  district  court.  And  in  like 
manner  any  district  court  may  remit  to  the  next  session  of  the 
circuit  court  of  the  same  district  any  indictment  pending  in  the 
said  district  court.  And  such  remission  shall  carry  with  it  all 
recognizances,  processes  and  proceedings  pending  in  the  case  in  the 
court  from  which  the  remission  is  made ;  and  the  court  to  which 
such  remission  is  made  shall,  after  the  order  of  remission  is  filed 
therein,  act  in  the  case  as  if  the  indictment,  and  all  other  proceed- 
ings in  the  same,  had  been  originated  in  said  court. 

Remission  from  district  to  circuit  court  of  difficult 
CASES. — Sec.  1038.  Any  district  court  may,  by  order  entered  on  its 
minutes,  remit  any  indictment  pending  there  into  the  next  session 
of  the  circuit  court  for  the  same  district,  when,  in  the  opinion  of 
such  district  court,  difficult  and  important  questions  of  law  are  in- 
volved in  the  case;  and  thereupon  the  proceedings  in  such  case 
shall  be  the  same  in  the  circuit  court  as  if  such  indictment  had  been 
originally  found  and  presented  therein. 


criminal  cases.  419 

All  capital  cases  remitted  from  district  to  circuit 
COURTS. — Sec.  1039.  Every  indictment  of  a  capital  offence,  pre- 
sented to  a  district  court,  together  with  the  recognizances  taken 
therein,  shall,  by  order  entered  on  its  minutes,  be  remitted  to  the 
next  session  of  the  circuit  court  for  the  same  district ;  and,  on  the 
filing  of  such  order  and  indictment  with  the  clerk  of  such  circuit 
court,  that  court  shall  proceed  thereon  in  the  same  manner  as  if 
said  indictment  had  been  originally  found  and  presented  therein. 

Capital  case  carried  to  the  Supreme  Court. — See.  1040. 
Whenever  a  judgment  of  death  is  rendered  in  any  court  of  the 
United  States,  and  the  case  is  carried  to  the  Supreme  Court  in 
pursuance  of  law,  the  court  rendering  such  judgment  shall,  by  its 
order,  postpone  the  execution  thereof  from  time  to  time  and  from 
term  to  term,  until  the  mandate  of  the  Supreme  Court  in  the  case 
is  received  and  entered  upon  the  record  of  such  lower  court.  In 
case  of  affirmance  by  the  Supreme  Court,  the  court  rendering  the 
original  judgment  shall  appoint  a  day  for  execution  thereof;  and 
in  case  of  reversal,  such  further  proceedings  shall  be  had  in  the 
lower  court  as  the  Supreme  Court  may  direct. 

Judgments  for  fines,  how  collected. — See.  1041.  In  all 
criminal  or  penal  causes  in  which  judgment  or  sentence  has  been 
or  shall  be  rendered,  imposing  the  payment  of  a  fine  or  penalty, 
whether  alone  or  with  any  other  kind  of  punishment,  the  said  judg- 
ment, so  far  as  the  fine  or  penalty  is  concerned,  may  be  enforced 
by  execution  against  the  property  of  the  defendant  in  like  manner 
as  judgments  in  civil  cases  are  enforced ;  provided,  that  where  the 
judgment  directs  that  the  defendant  shall  be  imprisoned  until  the 
fine  or  penalty  imposed  is  paid,  the  issue  of  execution  on  the  judg- 
ment shall  not  operate  to  discharge  the  defendant  from  imprison- 
ment until  the  amount  of  the  judgment  is  collected  or  otherwise  paid. 

§  513.  What  crimes  are  in/amous. — It  will  be  observed  that  by 
the  provisions  of  section  1022  of  the  statutes,  crimes  "  which  are 
not  infamous  may  be  prosecuted  by  indictment  or  by  information 
filed  by  a  district  attorney." 

This  term  has  received  a  construction  derived  from  the  doctrines 
of  the  common  law,  by  which  a  person  was  made  infamous  by  the 
crimes  of  treason,  felony  and  the  crime7i  falsi,  in  which  latter  case 
it  was  not  infamous  unless  it  not  only  involved  the  charge  of  false- 
hood,  but   also  injuriously  affected    the  public    administration    of 


420  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

justice  by  the  introduction  therein  of  falsehood  and  fraud,^  It 
does  not  necessarily  follow  that  crimes  that  may  be  punished  by  im- 
prisonment in  the  penitentiary  are  infamous;^  as  it  is  the  nature 
of  the  act  and  not  the  character  of  the  punishment  which  makes 
the  crime  infamous.^  And  offences  which  are  merely  misdemeanors 
cannot  by  any  construction  of  the  statute  be  considered  infamous.* 

§  514.  Consolidation  where  there  are  two  or  more  offences. — Sec- 
tion 1024  of  the  statutes  provides  for  consolidation  of  various  charges 
aarainst  a  defendant  and  of  tAvo  or  more  indictments  in  certain  cases. 

Under  this  provision  several  offences  arising  out  of  one  transac- 
tion may  be  charged  in  one  indictment  in  different  courts,  although 
some  of  them  are  declared  to  be  felonies,  while  others  are  not  so 
designated ;  ^  and  separate  counts  charging  distinct  and  different 
felonies  alleged  to  have  been  committed  at  different  times  and  places 
may  be  joined  in  one  indictment.^  The  same  offence  may  also  be 
charged  in  different  ways  in  several  counts  in  the  same  indictment 
to  meet  the  facts  of  the  case,  as  well  as  several  distinct  felonies  of 
the  same  degree  where  they  were  committed  at  different  times.^ 

In  an  indictment  for  passing  counterfeit  coin  several  counts  may 
be  inserted  charging  the  passing  of  counterfeit  coin  at  different 
times  and  on  different  occasions;^  and  a  count  for  making  false 
coins  may  be  joined  with  a  count  for  aiding  and  assisting  some 
other  person  in  such  making,  and  causing  and  procuring  some  other 
person  to  make  such  coins.^  So  a  count  for  an  assault  and  battery 
may  be  joined  with  a  count  for  a  riot  in  the  same  indictment,  if  the 
transactions  were  the  same  or  connected  together  ;^'^  but  a  count  for 
a  conspiracy  cannot  be  joined  with  one  for  murder  in  the  same  in- 
dictment, unless  it  is  shown  that  they  refer  to  "  the  same  act  or 
transaction,"  or  that  they  all  are  "acts  or  transactions  connected 
together."  ^^ 

^  United  States  «.  Block,  4  Saw.  211.  10;  United   States  v.  Burnes,  5  Mc- 

^  United  States  v.  Maxwell,  3  Dill.  Lean  23. 

275.                                                    '  ''  United    States  v.   Pirates,  5  Wh. 

^United   States  v.  Sawyer,  4  Saw.  184;  United   States  v.  O'Callahan,  6 

211.  McLean  596  ;  United  States  v.  Brent, 

*  United  States  v.  Ebert,  1  Cent.  L.  17  1.  R.  R.  54. 

J.   2U5;  United   States  v.    Waller,    1  *  United  States  w.  O'Callahan,  6  Mc- 

Saw.  701  ;  United  States  v.  Baugh,  1  Lean  596. 

Fed.  Rep.  784.  ®  United  States  v.   Burnes,   5   Mc- 

*  United  States  r.  .Jacoby,  12  Blatch.  Lean  23. 

491  ;  United  States  i'.  Dickinson,  2  *"  United  States  v.  McFarlane,  1  Cr. 
McLean  325.  (C.  C.)  163. 

«  United  States  v.  Young,  4  C.  L.  N.        "  United  States  v.  Scott,  4  Biss.  29. 


CRIMINAL   CASES.  421 

If  the  offence  charged  is  in  its  nature  several  only,  several  per- 
sons cannot  be  jointly  charged  in  the  indictment  with  it  ;^  and  if 
there  are  several  offences  charged  in  one  indictment  and  a  general 
verdict  or  plea  of  guilty  is  entered,  a  judgment  can  only  be  entered 
for  a  single  offence.^ 

For  forms  of  indictments,  see  jyost,  "Forms  in  Criminal  Cases." 

§  515.  Defects  of  form  in  indictments. — Imperfection  and  defects 
in  matters  of  form  in  an  indictment  which  do  not  tend  to  the  prej- 
udice of  the  defendant  will  not  make  it  insufficient  or  affect  the 
trial,  judgment  or  other  proceeding  thereon.^  If  the  meaning  of 
the  language  of  an  indictment  can  be  understood  as  charging  a 
crime,  it  will  be  good  although  there  may  be  a  mistake  in  expressing 
the  substance  of  it.*  But  an  omission  to  state  in  the  indictment 
anything  which  is  a  part  of  the  description  of  the  crime  is  a  mate- 
rial and  substantial,  and  not  a  mere  formal,  matter,  and  such  an  in- 
dictment is  defective;^  and  an  indictment  which  merely  sets  forth 
a  paper  upon  which  the  crime  charged  is  based,  by  a  description  of 
its  contents  instead  of  in  hceo  verba,  would  be  held  bad  on  a  motion 
in  arrest  of  judgment.^ 

§  516,  Copy  of  indictment  in  treason  and  other  capital  cases,  with 
a  list  of  the  jurors  and  •writnesses,  to  be  delivered  to  the  defendant. — 
It  will  be  observed  that  the  statute  requires  that  when  a  person  is 
indicted  for  treason,  a  copy  of  the  indictment  and  a  list  of  the  jury 
and  of  the  witnesses  to  be  produced  on  the  trial  for  proving  the  in- 
dictment, stating  the  abode  of  each  juror  and  witness,  shall  be 
delivered  to  him  at  least  three  days  before  he  is  tried  for  the  same; 
and  when  indicted  for  any  other  capital  offence,  such  copy  of  the 
indictment  and  list  of  jurors  and  witnesses  shall  be  delivered  to 
him  at  least  two  entire  days  before  the  trial. ^ 

It  is  not  sufficient  under  this  provision  that,  in  case  of  an  indict- 
ment for  treason,  the  notice  contain  a  mere  statement  of  the  coun- 
ties where  the  jurors  and  witnesses  reside,  but  the  particular  place 
in  the  county  and  state  of  their  residence  should  be  stated,  that  the 

^  United     States     v.    Kazinski,     2  Rep.  522.     See  also  United  States  v. 

Sprague  7.  Noelke,  1  Fed.  Rep.  426. 

^  United   States  v.  Maf^uire,  3  Cent.  °  United  States  v.  Conant,  9  Cent. 

L.  J.  273  ;  United  States  v.  Blaisdell,  L.  J.  129. 

3  Ben.  132.  ^  United    States   v.   Noelke,  supra. 

*  Rev.  Stat.  |  1025  ;  United  States  See  also  United  States  v.  Kruikshank, 
V.  Tuska,  14  Blatch.  5.  92  U.  S.  542;  United  States  v.  Jacoby, 

*  United  States  v.  Jackson,  2  Fed.  12  Blatch.  491. 

'  Rev.  Stat.  ^  1033. 


422  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

accused  may  prepare  for  his  defence  and  be  enabled  to  identify  the 
jurors  who  are  to  try  and  the  witnesses  who  are  to  prove  the  in- 
dictment against  him.^ 

In  other  capital  causes  the  copy  of  the  indictment  must  be  deliv- 
ered at  least  two  days  before  the  cause  is  tried  by  a  jury,  but  not 
two  days  before  he  is  arraigned  on  the  indictment.  The  arraign- 
ment of  a  prisoner  is  no  part  of  the  trial,  but  only  a  preliminary 
proceeding,  and  until  the  arraignment  and  plea  it  cannot  be  ascer- 
tained whether  there  will  be  a  trial  or  not.^ 

§  517.  Offences  not  capital. — In  the  case  of  the  indictment  of 
persons  for  offences  not  capital,  it  is  not  required  that  the  prisoners 
be  furnished  with  a  copy  of  the  indictment  at  the  expense  of  the 
government.^  As  the  right  to  claim  a  copy  of  the  indictment  is  not 
a  common  law  right,  and  rests  wholly  upon  the  statute,  the  construc- 
tion given  to  the  statute  could  well  rest  upon  the  familiar  maxim, 
exjyressio  unius  exelusio  alterius. 

But  in  such  cases  a  copy  may,  in  the  discretion  of  the  court,  be 
ordered  to  be  delivered  to  the  prisoner  where  it  is  shown  to  be  im- 
portant to  his  pleading  or  defence;*  and  the  court  may  also  order 
a  list  of  the  witnesses  sworn  before  the  grand  jury  to  be  furnished 
to  the  accused.^ 

§  518.  Defendant  maybe  found  guilty  of  a  less  offence. — In  all 
criminal  cases  the  defendant  may  be  found  guilty  of  any  offence  which 
is  necessarily  included  in  that  with  which  he  is  charged  in  the  in- 
dictment, or  of  an  attempt  to  commit  the  oflfence  charged  in  it.'' 
Therefore,  upon  the  trial  of  an  indictment  for  murder  a  verdict  of 
manslaughter  will  be  good,  as  the  crime  of  murder  necessarily  in- 
cludes the  crime  of  manslaughter.^ 

§  519.  Indictments  remitted  from  the  circuit  and  district  courts  to 
each  other. — Indictments  may  be  remitted  from  the  circuit  to  the 
district  courts,  and  vice  versa,  from  the  district  to  the  circuit  courts, 
in  certain  cases.^  Under  the  provision  of  the  section  last  cited  a 
cause  may  be  remitted  on  a  proper  motion  of  the  district  attorney 

1  United  States  v.  Insurgents,  2  Dall.  *  United  States  v.  Curtis,  4  Mas. 
335  :  s.  c,  Whart.  St.  Tr.  102  ;  United  232  ;  United  States  v.  Williams,  supra. 
States  V.  Stuart,  2  Dall.  343.  °  United    States    v.    Southmayd,   6 

2  Rev.  Stat.  ^  1033;  United  States  Biss.  321. 

V.  Curtis,  4  Mas.  232.  «  Rev.  Stat.  |  1035. 

^  United     States    v.    Blackford,    4  '  United  States  v.  Leonard,  2  Fed. 

Blatch.   337  ;  United  States  v.  Hare,  Rep.  669. 

2  Wheel.  Cr.  Cas.  283.  »  Rev.  Stat.  §  1037. 


CRIMINAL   CASES.  423 

from  the  circuit  court  to  the  district  court,  and  afterwards  back  to 
the  circuit  court.  Thus,  where  an  indictment  was  found  in  the  cir- 
cuit court,  and  was  on  motion  of  the  district  attorney  remitted  to 
the  district  court  under  the  provisions  of  this  section,  and  after  a 
demurrer  to  the  indictment  was  filed  bv  the  defendant  it  was,  on  a 
similar  motion  of  the  district  attorney,  remitted  back  to  the  circuit 
court  from  whence  it  originally  came,  and  the  United  States  there 
joined  in  the  demurrer,  and  on  the  question  as  to  the  jurisdiction  of 
the  circuit  court  the  judges  were  divided  in  opinion,  and  the  point 
was  certified  to  the  Supreme  Court,  it  was  there  held  that  the  trans- 
fer of  the  indictment  as  aforesaid  was  authorized,  and  that  the  cir- 
cuit court  had  jurisdiction.^ 

But  the  circuit  court  has  no  authority  under  the  statute  to  remit 
a  cause  to  the  district  court  on  its  own  motion  or  on  the  motion  of 
the  defendant ;  it  can  only  be  remitted  on  motion  of  the  district 
attorney."  The  statute  provides  for  the  transmission  of  criminal 
causes,  with  the  proceedings  therein,  but  does  not  prescribe  the  par- 
ticular form  in  which  the  record  should  be  sent,  and  it  has  been  held 
that  a  certified  copy  of  it  was  sufficient  for  this  purpose.^ 

§  520.  Remission  from  district  to  circuit  court  of  difficult  cases. — 
The  statute  provides  for  the  remission  of  criminal  cases  from  the 
district  to  the  circuit  court  for  the  same  district  when,  in  the  opinion 
of  the  district  court,  difficult  and  important  questions  of  law  are  in- 
volved in  the  case."*  Under  this  provision  it  seems  to  be  left  for 
the  district  court  to  decide  whether  or  not  there  are  important 
questions  of  law  involved  in  the  case,  and  whether  the  court  will 
enter  an  order  for  the  remission.  To  authorize  a  remission  on  this 
ground  the  question  of  law  should  be  of  manifest  grave  importance, 
and  the  mere  fact  that  the  district  judge  may  have  given  a  particu- 
lar exposition  of  a  statute  on  which  the  question  rests  should  not  con- 
trol the  court  in  its  action,  when  it  is  not  made  to  appear  that  his 
exposition  is  in  conflict  with  the  view's  of  any  other  court.^  The 
district  court  may,  in  a  proper  case,  remit  an  indictment,  even  after 
the  adjournment  of  the  term  at  which  the  indictment  was  found.^ 

'  United  States  v.  Murphy,  3  Wall.  *  Rev.  Stat.  I  1038. 

649.     See  also  United  States  v.  Mor-  ^  United  States  v.  0' Sullivan,  9  N. 

ris,  1  Curt.  23.  Y.  Leg.  Obs.  193. 

^  United      States    v.    Burnett,     16  ®  United  States  v.  Morris,  1  Curt. 

Blatch.  338.  23. 

'  United  States  v.  McKee,  4  Dill.  1, 


424 


FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 


§  521.  Judgments  for  fines  ;  how  collected. — The  statute  provides 
that  a  judgment  for  a  fine  or  penalty,  whether  alone  or  with  any 
other  kind  of  punishment,  may  be  enforced  by  execution  against 
the  property  of  the  defendant  in  the  same  manner  as  judgments  in 
civil  cases  are  enforced.^  If  the  judgment  provides  that  the  de- 
fendant shall  stand  committed  until  the  fine  is  paid,  a  capias  fro 
fine  may  be  issued  ;  and  if  nothing  is  said  in  the  judgment  concern- 
ing the  mode  of  executing  it,  the  district  attorney  may  elect  to  issue 
2i  fi.  fa.  or  a  capias  pro  fine.^  If  the  defendant  is  sentenced  to  pay 
a  fine  he  may  be  committed  to  jail  until  the  fine  is  paid.^ 


iRev.  Stat.  11041. 
^  Ex  parte  Louis  Feuscher,  23  I.  R. 
R.  202. 


^  United  States  v.  Robins,  15  I.  R. 
R.  155. 


CHAPTER  XXI. 

PROVISIONS   OF    THE    STATUTES    COMMON  TO  MORE    THAN  ONE  COURT 

OR   JUDGE. 


§  522.  Exclusive  jurisdiction  of  courts  of  the  United  States. — The 
exclusive  jurisdiction  of  the  courts  of  the  United  States  in  certain 
cases  and  proceedings  is  established  by  the  following  provisions  : 

Exclusive  jurisdiction  of  courts  of  United  States. — Sec. 
711.  The  jurisdiction  vested  in  the  courts  of  the  United  States,  in 
the  cases  and  proceedings  hereinafter  mentioned,  shall  be  exclusive 
of  the  courts  of  the  several  states  : 

First.  Of  all  crimes  and  offences  cognizable  under  the  authority 
of  the  United  States.* 

Second.  Of  all  suits  for  penalties  and  forfeitures  incurred  under 
the  laws  of  the  United  States.^ 

Third.  Of  all  civil  causes  of  admiralty  and  maritime  jurisdiction  ; 
saving  to  suitors,  in  all  cases,  the  right  of  a  common  law  remedy, 
\?here  the  common  law  is  competent  to  give  it. 


*  We  have  already  considered  the 
subject  of  the  jurisdiction  of  tlie  dis- 
trict and  circuit  courts  in  criminal 
causes.  Seeaw^e,  ch.  xx.  We  may  here 
observe,  however,  that  under  the  pro- 
visions of  paragraph  1  of  this  section 
a  state  court  cannot  entertain  an  in- 
dictment for  perjury  committed  in  a 
proceeding  before  a  United  States 
commissioner  on  a  preliminary  ex- 
amination of  a  party  on  the  charge 
of  having  violated  a  penal  law  of  the 
United  States:  Ross  v.  State  of  Geor- 
gia, 55  Geo.  192;  Ex  parte  Dock 
Bridges,  2  Woods  428.  See  also  State 
V.  Kirkpatrick,  32  Ark.  117.  And  it 
may  be  said  generally  that  a  state 
court  can  take  no  cognizance  of  a 
crime  against  the  laws  of  the  United 
States:  Martin  v.  Hunter,  1  Wh.  304; 
StMte  V.  Adams,  4  Black  145  ;  State 
V.  McBride,  Rice  400;  Commonwealth 
V.  Feely,  1  Va.  Cas.  321  ;  Huber  v. 
Reiley,  53  Penn.  112;  State  v.  Pike, 
loN.  H.  83. 

We  have  noticed  that  a  party  may 
be   amenable  for  infractions  of  both 


state  and  national  statutes,  and  liable 
to  prosecution  for  the  same  offence 
in  either  or  both  courts.  See  ante, 
II  138,  139,  140,  141. 

^  The  state  courts  not  only  have  no 
jurisdiction  of  offences  against  the 
laws  of  the  United  States,  but  they 
cannot  entertain  a  civil  suit  brought 
by  the  government  of  the  United 
States  or  any  person  in  its  behalf  for 
a  forfeiture  or  penalty  incurred  under 
the  laws  of  the  United  States,  as  this 
provision  gives  the  federal  courts  ex- 
clusive jurisdiction  of  such  causes: 
Hanley  v.  Sharp,  1  Dana  442 ;  Jack- 
son V.  Rose,  2  Va.  Cas.  34  ;  United 
States  V.  Lathrop,  17  Johns.  4.  But 
it  has  been  held  that  a  state  court 
could  entertain  jurisdiction  of  a  suit 
brought  by  a  person  for  a  penalty  to 
which  he  was  entitled  by  an  act  of 
Congress  :  Blitz  v.  Columbia  Nat.  Bk., 
87  Penn.  87  ;  Ordway  v.  Central  Nat. 
Bk.,  47  Md.  217.  But  see  Missouri 
River  Tel.  Co.  v.  First  Nat.  Bk.,  74 
111.  217;  Ely  v.  Peck,  7  Conn.  239. 


426 


FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 


FourtJi.  Of  all  seizures  under  the  laws  of  the  United  States,  on 
land  or  on  waters  not  within  admiralty  and  maritime  jurisdiction.^ 

Fifth.  Of  all  cases  arising  under  the  patent-right  or  copyright 
laws  of  the  United  States.^ 

Sixth.  Of  all  matters  and  proceedings  in  bankruptcy.^ 

Seventh.  Of  all  controversies  of  a  civil  nature,  where  a  state  is  a 
party,  except  between  a  state  and  its  citizens,  or  between  a  state 
and  citizens  of  other  states,  or  aliens. 

Eighth.^ 

Oath  of  United  States  judges. — Sec.  712.  The  justices  of  the 
Supreme  Court,  the  circuit  judges  and  the  district  judges,  here- 
after appointed,  shall  take  the  following  oath  before  they  proceed 

to  perform  the  duties  of  their  respective  offices  :  "  I, , 

do  solemnly  swear  (or  affirm)  that  I  will  administer  justice  without 
respect  to  persons,  and  do  equal  right  to  the  poor  and  to  the  rich, 


^  A  collector  who  has  the  proceeds 
arising  from  the  condemnation  of  a 
vessel  for  a  violation  of  the  revenue 
laws  may  be  sued  in  a  state  court  by 
a  party  who  is  entitled  to  a  portion 
thereof  as  informer,  notwithstandincr 
this  provision  :  Lapham  v.  Almy,  95 
Mass.  301.  And  if  he  seizes  a  vessel 
for  a  violation  of  the  revenue  law  and 
neo:lects  to  proceed  for  a  condemna- 
tion of  it  within  the  time  prescribed 
by  law,  he  may  be  sued  in  a  state 
court  for  an  unlawful  seizure :  Stough- 
ton  v.  Mott,  13  Vt.  175. 

^  Under  this  pi-ovision  the  jurisdic- 
tion of  the  federal  courts  is  exclusive 
in  all  cases  arisincr  under  the  patent- 
right  or  copyright  laws  of  the  United 
States.  But  this  exclusive  jurisdic- 
tion is  limited  to  those  cases  arising 
under  the  laws  of  the  United  States, 
such  as  controversies  about  infringe- 
ments or  between  parties  claiming 
the  same  exclusive  right  under  differ- 
ent patents,  and  the  like  :  Crown  v. 
Shannon,  20  How.  56  ;  Day  v.  Wood- 
ward, 20  How.  208  ;  Burr  v.  Duryee, 
1  Wall.  531  ;  O'Riley  v.  Morse,  15 
How.  112;  Batlien  v.  Taggart,  17 
How.  83 ;  Goodyear  v.  Providence 
Rub.  Co.,  2  Fish.  Pat.  Cas.  499.  But 
if  the  matter  in  dispute  rests  upon  a 
contract  between  the  parties  even  in 
relation    to   a   patent-right   or   copy- 


right, as  on  an  assignment  of  it  or  a 
use  in  it,  or  the  suit  is  to  compel  the 
specific  performance  of  a  contract  for 
the  transfer  of  an  interest  in  a  patent- 
right  or   copyright,  or  in  any   other 
case  based    upon   a   contract,  which 
shows  the  right  of  the  parties  relat- 
ing  to   it,  and   there   is   no   question 
raised  about  the  validity  of  the  patent 
or  infringements  of  it,  the  state  courts 
may    take    cognizance    of    the    suit 
Hartzel  v.   Tilghman,  99  U.  S.  547 
Wilson    V.    Sanford,     10    How.    99 
Hartshorn    v.    Day,    19    How.    211 
Goodyear  v.  The  Union  Rubber  Co., 
4   Blatch.    63  ;    Burr   v.   Gregory,   2 
Paine  C.  C.  426  ;  Bourcicault  v.  Hart, 
13   Blatch.    47:    Palte   v.    Derby,   5 
McLean  328  ;  Boui'cicault  v.  Fox,  5 
Blatch.  97.     See  also  ante^  ^  159. 

^  The  Bankrupt  Act  of  1867  was 
repealed  by  act  of  June  7,  1878,  which 
took  effect  Sept.  1,  1878,  except  as  to 
matters  then  pending  in  court:  Act 
45  Cong.,  Stat,  at  Large  19. 

*  Sec.  711  was  amended  by  act  of 
February  18,  1875,  by  striking  out 
the  eighth  paragraph,  which  read  as 
follows :  "  Of  all  suits  against  em- 
bassadors or  other  public  ministers, 
or  their  domestics  or  domestic  serv- 
ants, or  against  consuls  or  vice-con- 
suls." 


COMMON   PROVISIONS.  427 

and  that  I  will  faithfully  and  impartially  discharge  and  perform  all 

the  duties  incumbent  on  me  as ,  according  to  the  best  of  my 

abilities  and  understanding,  agreeably  to  the  Constitution  and  laws 
of  the  United  States:  so  help  me  God." 

Judges  prohibited  from  practicing  law. — Sec.  713.  It  shall 
not  be  lawful  for  any  judge  appointed  under  the  authority  of  the 
United  States  to  exercise  the  profession  or  employment  of  counsel 
or  attorney,  or  to  be  engaged  in  the  practice  of  the  law.  And  any 
person  offending  against  the  prohibition  of  this  section  shall  be 
deemed  guilty  of  a  high  misdemeanor. 

Judges  resigning  entitled,  in  certain  cases,  to  salary  for 
LIFE. — Sec.  714.  When  any  judge  of  any  court  of  the  United  States 
resigns  his  office,  after  having  held  his  commission  as  such  at  least 
ten  years,  and  having  attained  the  age  of  seventy  years,  he  shall, 
during  the  residue  of  his  natural  life,  receive  the  same  salary  which 
was  by  law  payable  to  him  at  the  time  of  his  resignation. 

Criers  of  the  courts,  attendants  on  juries. — Sec.  715.  The 
circuit  and  district  courts  may  appoint  criers  for  their  courts,  to  be 
allowed  the  sura  of  two  dollars  per  day,  and  the  marshals  may 
appoint  such  a  number  of  persons,  not  exceeding  five,  as  the  judges 
of  their  respective  courts  may  determine,  to  attend  upon  the  grand 
and  other  juries,  and  for  other  necessary  purposes,  who  shall  be 
allowed  for  their  services  the  sum  of  two  dollars  per  day,  to  be  paid 
by  and  included  in  the  accounts  of  the  marshal,  out  of  any  money 
of  the  United  States  in  his  hands.  Such  compensation  shall  be 
paid  only  for  actual  attendance,  and  when  both  courts  are  in  session 
at  the  same  time,  only  for  attendance  on  one  court. 

Power  to  issue  avrits. — Sec.  716.  The  Supreme  Court  and  the 
circuit  and  district  courts  shall  have  power  to  issue  writs  of  scire 
facias.  They  shall  also  have  power  to  issue  all  writs  not  specifically 
provided  for  by  statute,  which  may  be  necessary  for  the  exercise  of 
their  respective  jurisdictions  and  agreeable  to  the  usages  and  prin- 
ciples of  law\^ 

'  We  have  already  considered  the  should  state  the  facts  on  which  it  is 

power  of  federal  courts  to  grant  writs  founded.     It  is  in  the  nature  of  a  dec- 

of  prohibition,  mandamus  and  habeas  laration,  to  which  the  defendant  may 

corpus.     See  ante,  ch.  xv.,  xvi.,  xvii.  properly  plead  or  answer:  Winder  v. 

Scire  facias  is  a  judicial  writ  to  en-  Caldwell,    14   IIow.   434  ;    Bently   v. 

force  the  execution  of  a  judgment,  and  Sevier,  Hemp.  250;  Ex  parte  Wood, 

founded  upon  some  matter  of  record  9  Wh.  603  ;  Wigman  v.  Southard,  10 

in  the  cause  in  which  it  issues  ;  and  it  Wh.  1  ;  Beers  v.  Ilaughton,  9  Pet.  329. 


428 


FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 


Writs  of  ne  exeat. — Sec.  111.  Writs  of  ne  exeat  may  be  grant- 
ed by  any  justice  of  the  Supreme  Court  in  cases  where  they  might 


The  phrase  "  usages  and  principles 
of  the  law ''  has  been  interpreted  as 
not  limiting  the  power  of  the  court  to 
issue  writs  to  the  principles  and 
usages  of  the  common  law,  but  as  ex- 
tending in  such  cases  to  the  princi- 
ples and  usages  of  law  as  recognized 
in  the  state  courts  at  the  time  of  its 
enactment:  Riggs  V.Johnson,  6  Wall. 
166  ;  Bank  v.  Ilalstead,  10  Wh.  51, 

Writs  of  Certiorari. — The  power 
to  issue  "  all  other  writs  not  specially 
provided  for  by  statute  which  may  be 
necessary  for  the  exercise  of  their 
respective  jurisdictions,  and  agree- 
able to  the  usages  and  principles  of 
law,"  embraces  the  power  to  issue  the 
writ  of  certiorari :  Ex  parte  Van 
Orden,  5  Blatch.  303 ;  Russell  v. 
Thomas,  31  Leg.  Int.  189. 

The  writ  of  certiorari  can  only  be 
issued  as  auxiliary  to  the  exercise  of 
judicial  authority  over  the  case  or 
subject-matter  to  which  it  is  appli- 
cable :  Exjfarte  Van  Arnam,  3  Blatch. 
166.  But  a  circuit  court  cannot  issue 
the  writ  to  remove  a  cause  from  the 
district  court  before  a  final  judgment 
is  there  pronounced :  Patterson  v. 
United  States,  2  Wh.  221.  It  may  be 
used  in  the  Supreme  Court  only  as  an 
ancillary  process  to  enable  that  court 
to  obtain  further  information  in  re- 
spect to  some  matter  already  before 
it  for  adjudication:  United  States  w. 
Young,  94  U.  S.  258 ;  s.  c,  12  Ct.  CI. 
129.  But  it  cannot  be  used  to  bring 
up  a  record  of  the  proceedings  that 
have  taken  place  in  the  inferior  court 
since  an  appeal :  United  States  v. 
Adams,  9  Wall.  661. 

The  Supreme  Court  cannot  issue 
the  writ  to  revise  the  proceedings  of 
a  military  commission  :  Ex  parte  Val- 
landigham,  1  Wall.  243 ;  or  to  re- 
move a  cause  in  an  inferior  court 
because  it  has  no  jurisdiction  over  it: 
Fowler  v.  Lindsey,  3  Dall.  411  -,  or  to 
compel  the  inferior  court  to  make  a 
finding  of  facts  which  has  been  omit- 
ted :  United  States  v.  Adams,  9  Wall. 
661  ;  or  to  compel  the  clerk  of  an  in- 
ferior court  to  append  to  the  transcript 
his  certificate  that  a  transcript  con- 


tains the  whole  record :  Hodges  c. 
Vaugh,  19  Wall.  12  ;  or  to  correct  any 
omissions  that  may  have  been  made 
in  the  circuit  court  in  framing  a  bill 
of  exceptions  :  Stimpson  v.  Westches- 
ter R.  Co.,  3  How.  553 ;  or  to  bring 
up  the  proceedings  in  the  Court  of 
Claims,  after  a  new  trial  has  been 
granted  therein :  United  States  v. 
Young,  94  U.  S.  258  ;  Collie  v.  United 
States,  12  Ct.  CI.  129.  But  it  will 
issue  from  the  Supreme  Court  to  the 
Court  of  Claims,  directing  it  to  make 
return  as  to  the  existence  or  non-ex- 
istence of  some  particular  and  material 
fact :  United  States  v.  Adams,  9  Wall. 
661  :  United  States  v.  Gomez,  1  Wall. 
690;  The  Rio  Grande,  19  Wall.  178  ; 
and  it  may  be  issued  to  bring  up  a 
citation  which  was  not  transmitted  to 
the  Supreme  Court  with  a  writ  of 
error:  Field  v.  Milton,  3  Cr.  514; 
Innerarity  v.  Byrne,  5  How.  295;  or 
to  supply  an  omission  of  a  paper  from 
a  bill  of  exceptions  and  which  is  re- 
ferred to  therein  :  Morgan  v.  Curte- 
nius,  19  How.  8 ;  or  to  compel  evi- 
dence which  has  been  omitted  from  a 
transcript  to  be  certified :  Holmes  v. 
Trout,  7  Pet,  171. 

A  return  to  a  writ  of  certiorari  is 
sufiicient  if  made  by  the  clerk  and 
not  by  the  judge:  Stewart  v.  Ingle.  9 
Wh.  526  ;  but  it  should  be  made  under 
his  hand  and  the  seal  of  the  court : 
Fenemore  v.  United  States,  3  Dall. 
360. 

For  form,  see  post,  No. 

Supersedeas. — The  provision  of 
this  section  also  authorizes  the  use 
of  the  writ  of  supersedeas,  where  it  is 
necessary  to  the  exercise  of  the  proper 
jurisdiction  of  the  court:  French  v. 
Shoemaker,  12  Wall.  86  ;  Slaughter- 
house Cases,  10  Wall.  273;  Green  v. 
Buskirk,  3  Wall.  448.  But  the  Su- 
preme Court  cannot  issue  a  writ  of 
supersedeas  to  stay  proceedings  on  the 
judgment  of  an  inferior  court  upon 
the  ground  that  a  writ  of  error  is 
pending,  unless  the  writ  was  sued 
out  within  the  time  presci'ibed  by 
law  after  the  entry  of  the  judgment : 
Adams  v.   Law,   16   How.  144 ;  Salt- 


COMMON    PROVISIONS.  429 

be  granted  by  the  Supreme  Court ;  and  by  any  circuit  justice  or 
circuit  judge  in  cases  where  they  might  be  granted  by  the  circuit 
court  of  which  he  is  a  judge.  But  no  writ  of  ne  exeat  can  be 
granted  unless  a  suit  in  equity  is  commenced,  and  satisfactory  proof 
is  made  to  the  court  or  judge  granting  the  same  that  the  defendant 
designs  quickly  to  depart  from  the  United  States.^ 

Temporary  restraining  orders. — Sec.  718.  Whenever  notice 
is  given  of  a  motion  for  an  injunction  out  of  a  circuit  or  district 
court,  the  court  or  judge  thereof  may,  if  there  appears  to  be  danger 
of  irreparable  injury  from  delay,  grant  an  order  restraining  the  act 
sought  to  be  enjoined  until  the  decision  upon  the  motion  ;  and  such 
order  may  be  granted  with  or  without  security,  in  the  discretion  of 
the  court  or  judge. ^ 

Injunctions. — Sec.  719.  Writs  of  injunction  may  be  granted  by 
any  justice  of  the  Supreme  Court  in  cases  where  they  might  be 
granted  by  the  Supreme  Court ;  and  by  any  judge  of  a  circuit 
court  in  cases  where  they  might  be  granted  by  such  court.  But  no 
justice  of  the  Supreme  Court  shall  hear  or  allow  any  application  for 
an  injunction  or  restraining  order  in  any  cause  pending  in  the  cir- 
cuit to  which  he  is  allotted,  elsewhere  than  within  such  circuit,  or 
at  such  place  outside  of  the  same  as  the  parties  may  stipulate  in 

marsh  i".  Tuthill,  12  How.   387;  Ho-  be   an   equitable   debt  or   pecuniary 

j;an  ?;.  Ross,  11  How.  294 ;  VV alien  t7.  claim,  and  be  certain  or  capable  of 

Williams,  7  Cr.  278.  being  reduced  to  a  certainty  :  Graham 

The  form  of  the  writ  must  depend  v.  Stucken,  4  Blatch.  50;  Gernon  v. 

upon  the  particular  circumstances  of  Boecaline,  2  Wash.   130.      And  it  is 

the  case :  Goddard  v.  Ordway,  94  U.  not  sufficient   that   the   defendant  is 

S.  672.  about  to  leave  the  district,  but  it  must 

Other  writs. — Under   the  provis-  appear  that  he  intends    to  leave  the 

ions  of  the  statute   under  consider-  United  States  :  Union  Insurance  Co. 

ation  writs   of  injunction,   subpoena,  v.  Kellogg,  5  W.  N.  477  ;  Patterson  v. 

subpoena  dii^es  tecum,  attachment,  as-  McLaughlin,  1  Cr.  C.  C.  352. 
sistance,    inhibition    and    execution,         ^  An    injunction     should     not     be 

may   be    issued   from    the    Supreme  granted  without  a  reasonable  notice, 

Court,    or  district   or   circuit  courts,  either  by  the  court  or  a  judge  :  New 

where  it  may  be  necessary  for  the  ex-  York  v.  Connecticut,  4  Dall.  1  ;  Mow- 

ercise  of  their  respective  jurisdiction  reyv.  Indianapolis  &  C.  R.  Co.,  4Bi8s. 

and  agreeable  to  the  principles  and  78.     And  what  is  a  reasonable  notice 

usages  of  law  :  Fisk  v.  Union  Pac.  R.  will  depend  upon  the  circumstances  of 

Co.,  10  Blatch.  518  ;  United  States  v.  the  case.     If,  however,  a  party  volun- 

AVilliams,  4  Cr.  372  ;  In  re  Shephard,  tarily  appears  to  the  application  for 

3  Fed.    Rep.  12;  Ferrell  v.  Allison,  an  injunction  without  objection,  it  is  a 

21  Wall.  289 ;  Penhallow  v.  Doane,  3  waiver  of  proof  of  notice  :  Marsh  v. 

Dall.  54;  Wyman  w.  Southard,  10  Wh.  Bennett,  5  McLean  117  ;    Bradley  v. 

1;  Bankw.  Halstead,  10  Wh.  51.  Reed,    12  Pitts.    L.  J.    65.     But  see 

^  The  foundation  of  the  claim  must  Yungling  v.  Johnson,  1  Hughes  607. 


430 


FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 


writing,  except  when  it  cannot  be  heard  by  the  circuit  judge  of  the 
circuit  or  the  district  judge  of  the  district.  And  an  injunction  shall 
not  be  issued  by  a  district  judge,  as  one  of  the  judges  of  the  cir- 
cuit court,  in  any  case  where  a  party  has  had  a  reasonable  time  to 
apply  to  the  circuit  court  for  the  writ ;  nor  shall  any  injunction  so 
issued  by  a  district  judge  continue  longer  than  to  the  circuit  court 
next  ensuing,  unless  so  ordered  by  the  circuit  court.^ 

Injunction  to  stay  proceedings  in  state  courts. — Sec.  720. 
The  writ  of  injunction  shall  not  be  granted  by  any  court  of  the 
United  States  to  stay  proceedings  in  any  court  of  a  state,  except  in 
cases  where  such  injunction  may  be  authorized  by  any  law  relating 
to  proceedings  in  bankruptcy.^     (See  §  5106.) 

Laws  of  the  states;  rules  of  decision. — Sec.  721.  The  laws 
of  the  several  states,  except  where  the  Constitution,  treaties  or  stat- 


^  A  justice  of  the  Supreme  Court 
may  hear  an  application  for  an  injunc- 
tion in  case  of  the  absence  or  disa- 
bility of  the  circuit  and  district 
judges:  Searle  v.  Railroad,  2  Woods; 
and  where  they  are  all  absent  from  the 
district  and  circuit  it  maybe  allowed 
by  a  justice  allotted  to  another  cir- 
cuit :  United  States  v.  Canal  Co.,  4 
Dill.  600. 

The  circuit  court,  when  held  by  a 
district  judj^e,  has  authority  to  issue 
the  writ  in  all  respects  the  same  as 
though  held  by  a  circuit  judge  ;  but  a 
district  judge  cannot  in  vacation 
allow  the  writ  when  the  circuit  court 
can  be  applied  to  :  Goodyear  v.  Fol- 
som,  3  Fed.  Rep.  509 ;  26  1.  R.  R.  251. 
And  if  issued  by  him  it  ceases  to  be 
in  force  at  the  succeeding  terra  of  the 
circuit  court  unless  an  order  is  then 
made  for  its  continuance  :  Parker  v. 
Judges,  12  Wh.  561  ;  Gray  v.  Rail- 
road, 1  Wool.  63. 

^  As  the  bankrupt  law  has  been  re- 
pealed it  will  be  unnecessary  to  refer 
to  the  decisions  bearing  upon  the  ex- 
ceptions contained  in  this  section,  as 
that  is  virtually  obsolete:  20  Statute 
at  Large,  §  99. 

The  restraint  of  the  federal  courts 
in  such  cases  is  not  confined  to  the 
"  writ  of  injunction"'  in  its  technical 
sense,  but  the  statute  is  an  inhibition 
against  staying  proceedings  in  the 
state  courts,  either  by  the  writ  of  in- 
junction,   mandamus  or  prohibition, 


or  in  any  other  manner  :  Fisk«.  Union 
Pac.  R.  Co.,  6  Blatch.  362.  The  term 
"proceedings"  in  the  statute  covers 
all  proceedings  in  the  state  court  or 
by  its  officers  under  its  process  ;  hence, 
if  a  sheriff"  has  possession  of  property 
under  process  issued  from  a  state  court, 
it  cannot  be  displaced  by  a  writ  issued 
from  a  federal  court :  Watson  v.  .Jones, 
13  Wall.  679;  United  States  v.  Col- 
lins, 4  Blatch.  142;  Evans  v.  Pack,  7 
Cent.  L.  .J.  409  ;  Ruggles  v.  Simon- 
ton,  3  Biss.  325. 

Nor  can  a  circuit  court  enjoin  pro- 
ceedings removed  from  a  state  to  a  cir- 
cuit court :  Fisk  v.  Union  Pac.  R.  Co., 
6  Blatch.  362;  Diggs  v.  Walcott,  4Cr. 
179. 

Nor  can  the  Supreme  Court  enjoin 
proceedings  in  a  subordinate  state 
court,  although  it  has  allowed  a  writ 
of  error  to  the  judgment  of  the  ap- 
pellate court:  Slaughter-house  Cases, 
10  Wall.  273.  Nor  can  a  federal 
court  interfere  with  property  that  is 
in  the  possession  of  a  receiver  ap- 
pointed by  a  state  court:  Mercantile 
Trust  Co.  V.  Railroad  Co.,  16  Blatch. 
324.  But  if  after  the  removal  of  a 
cause  from  the  state  court  into  the  cir- 
cuit court  the  plaintiff"  brings  an  action 
in  the  state  court  to  recover  on  a  judg- 
ment rendered  in  the  cause  before  the 
removal,  an  injunction  will  be  issued 
from  the  circuit  court  to  restrain  such 
suit:  French  v.  Ilay,  22  Wall.  250. 


COMMON   PROVISIONS. 


431 


utes  of  the  United  States  otherwise  require  or  provide,  shall  be 
regarded  as  rules  of  decision  in  trials  at  common  law,  in  the  courts 
of  the  United  States,  in  cases  where  they  apply.^ 


^  Rules  of   decisions. — The   state 
laws  do  not  confer  jurisdiction  on  the 
federal    courts,  but   furnish  rules  of 
decisions  '  in   trials  at  common  law 
Orleans   v.    Phoebus,    11    Pet.    175 
United  States  v.  Reid.  12  How.  361 
Golden    v.    Prince,    3    Wash.    313 
United   States  v.  Dunham,  21  L.  R. 
591. 

Construction  BY  THE  STATE  courts. 
— In  the  construction  of  the  statutes 
and  laws  of  a  state,  the  sieneral  prin- 
ciple is  that  the  judicial  department 
of  the  state  is  the  appropriate  organ 
for  this  purpose,  and  that  decisions  of 
the  highest  court  of  a  state  construing 
the  statutes  thereof  are  binding  upon 
the  federal  courts,  although  the  fed- 
eral courts  may  have  previously  put 
a  different  construction  upon  them  ; 
but  this  doctrine  does  not  apply  where 
these  come  in  conflict  with  the  Con- 
stitution, laws  or  treaties  of  the  United 
States  :  State  v.  Grand  Trunk  R.  Co., 
3  Fed.  Rep.  887 ;  Supervisors  v. 
United  States,  18  Wall.  71  ;  United 
States  V.  Morrison,  4  Pet.  124;  Van 
Rensselaer  v.  Kearney,  11  How.  297  ; 
Coates  V.  Muse,  1  Brock.  529 ;  Rich- 
mond V.  Smith,  15  Wall.  429  ;  Walker 
V.  Commissioners,  17  Wall.  648 
Webster  v.  Cooper,  14  How.  488 
Elmondorf  v.  Taylor,  10  Wh.  152 
United  States  v.  Knight,  14  Pet.  301. 

Where  the  doctrine  applies. — 
The  construction  of  the  Statute  of 
Limitations  of  a  state,  by  the  highest 
court  of  a  state,  will  be  followed  by 
the  federal  courts  :  Henderson  v. 
Griffin,  5  Pet.  151  ;  Shelby  v.  Guy, 
11  Wh.  361  ;  Bell  v.  Morrison,  1  Pet. 
351  ;  Baker  v.  Jackson,  1  Paine  559. 
And  the  construction  by  the  state 
courts  of  statutes  in  relation  to  the 
validity  of  voluntary  assignments  to 
creditors  will  be  followed  :  Lloyd  v. 
Fulton,  91  U.  S.  479  ;  also  in  relation 
to  fraudulent  conveyances :  Allen  v. 
Massey,  17  Wall.  351  ;  Brashear  v. 
AVest,  7  Pet.  608;  Sumner  v.  Hicks, 
2  Black  532 ;  also  relating  to  execu- 
tors :  United  States  v.  Morrison,  4 
Pet.  124;    also  affecting  the  title  to 


real  property:  Williams  v.  Kirkland, 
13  Wall.  306;  Nichols  v.  Levy,  5 
Wall.  433  ;  Van  Rensselaer  v.  Kear- 
ney, 11  How.  297;  also  relating  to 
the  power  of  a  corporation  under  a 
statute  to  issue  bonds :  Thomas  o. 
Scotland,  2  Dill.  7  ;  and  generally  in 
construing  the  charters  of  munici- 
pal corporations:  Goodrich  v.  Chi- 
cago, 4  Biss.  18  ;  Stone  v.  Wisconsin, 
94  U.  S.  181  ;  and  construing  the  con- 
stitution of  the  state,  as  where  the 
state  court  decides  that  a  statute  is 
void  unless  it  appears  on  the  legisla- 
tive journals,  as  provided  by  the  Con- 
stitution :  South  Ottawa  v.  Perkins, 
94  U.  S.  260 ;  Taylor  v.  Secor,  92  U. 
S.  575 ;  Kimbal  v.  Mobile,  3  Woods 
555 ;  Leavenworth  v.  Barnes,  94  U. 
S.  70;  Boyd  v.  Alabama,  94  U.  S. 
645.  So  the  decision  of  the  highest 
state  court  construing  a  statute  relat- 
ing to  the  assessment  or  collection  of 
taxes  is  binding  upon  the  federal 
courts :  Paine  v.  Wright,  6  McLean 
395 ;  Woodman  v.  Latimer,  2  Fed. 
Rep.  842,  So  a  construction  given 
by  the  highest  state  court  to  the 
Statute  of  Frauds  of  the  state  will  be 
followed  ;  and  the  construction  by 
such  state  courts  of  statutes  relating 
to  the  solemnization  of  marriages : 
Meister  v.  Moore,  96  U.  S.  76 ;  and 
as  to  the  right  of  a  corporation  to 
condemn  land :  Secomb  v.  Railroad 
Co.,  23  Wall.  108;  and  as  to  the 
character  and  extent  of  the  jurisdic- 
tion of  state  tribunals  :  Williamson 
V.  Berry,  8  How.  495 ;  .letter  v.  Hew- 
itt, 22  How.  352. 

Where  the  state  decisions  will 
not  be  followed. — The  federal  courts 
are  not  bound  to  follow  the  decisions 
of  inferior  state  courts  :  Patapsco 
Guano  Co.  v.  Morrison,  2  Woods  395 ; 
Von  Brocklen  v.  Brooklyn  City  R.  Co., 
5  Blatch.  379.  If  the  decision  of  the 
highest  state  court,  construing  a  state 
constitution,  difi'ers  from  a  previous 
construction,  the  federal  courts  will 
not  follow  the  last  decision  where 
rights  have  been  acquired  under  for- 
mer ones :    Fairfield  v.  Gallatin,  100 


432 


FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 


The  act  of  June  1,  1874,  ch.  200,  18  Stat.  50,  provides:  That 
when  an  occupant  of  land,  having  color  of  title,  in  good  faith  has 
made  valuable  improvements  thereon,  and  is,  in  the  proper  action, 
found  not  to  be  the  rightful  owner  thereof,  such  occupant  shall  be 
entitled  in  the  federal  courts  to  all  the  rights  and  remedies,  and, 
upon  instituting  the  proper  proceedings,  such  relief  as  may  be  given 
or  secured  to  him  by  the  statutes  of  the  state  or  territory  where  the 
land  lies,  although  the  title  of  the  plaintiff  in  the  action  may  have 
been  granted  by  the  United  States  after  said  improvements  were 
so  made. 

Proceedings  in  vindication  of  civil  rights. — Sec.  722.  The 
jurisdiction  in  civil  and  criminal  matters  conferred  on  the  district 
and  circuit  courts  by  the  provisions  of  this  title,  and  of  title  "  Civil 
Rights,"  and  of  title  "  Crimes,"  for  the  protection  of  all  persons 
in  the  United  States  in  their  civil  rights,  and  for  their  vindication, 
shall  be  exercised  and  enforced  in  conformity  with  the  laws  of  the 
United  States,  so  far  as  such  laws  are  suitable  to  carry  the  same 
into  effect ;  but  in  all  cases  where  they  are  not  adapted  to  the 
object,  or  are  deficient  in  the  provisions  necessary  to  furnish  suit- 


U.  S.  47  ;  Douglas  v.  Pike,  101  U.  S. 
677;  Roberts  v.  Bolles,  101  U.  S. 
119. 

Laws  of  the  several  states. — The 
language  of  the  section,  "  laws  of  the 
several  states,"  does  not  limit  the  ap- 
plication of  the  provision  to  laws  en- 
acted by  the  legislative  authority  of 
the  state  only,  but  it  embraces  long- 
established  local  customs  having  the 
force  of  laws  :  Swift  v.  Tyson,  16  Pet. 
1.  But  the  decisions  of  the  state 
courts  on  questions  of  a  general  na- 
ture, and  not  based  upon  a  statute  of 
the  state  or  long-established  custom 
or  usage,  are  not  within  the  pro- 
vision, and  therefore  not  conclusive 
authority :  Hough  v.  Railway  Co., 
lUO  U.  S.  213;  Olcott  V.  Supervisors, 
16  Wall.  678;  Boyce  v.  Tabb,  18 
Wall.  546.  Thus  the  decisions  of 
the  state  courts  of  highest  authority 
upon  the  general  principles  of  the 
commercial  law  are  not  binding  upon 
the  federal  courts :  Oats  v.  National 
Bk.,  lUO  U.  S.  2:i9  ;  Swift  v.  Tyson, 
16  Pet.  1  ;  Williams  v.  Suffolk  Ins. 
Co.,  3  Sum.  270;  13  Pet.  415;  Jew- 
ett  V.  Hone,  1  Woods  530 ;  Austin  v. 


Miller,  5  McLean  153  ;  13  How.  218  ; 
Wood  V.  Lutzinger,  2  Fed.  Rep.  285. 
The  federal  courts  have  maintained 
the   integrity  of  commercial   paper, 
and  as  far  as  was  possible  protected 
the   interests  of  parties  thereto  from 
the  unjust  and  frequently  fluctuating 
decisions  of  the  state  courts.     Thus 
the    Supreme   Court   of    the    United 
States  has  frequently  held  that  if  a 
contract  when   made  is  valid  by  the 
laws  of  the  state  at  the  time,  as  con- 
strued  by  the   court  of  highest  au- 
thority in  the  state,  and  a  subsequent 
decision  of  such  court  would  invalid- 
ate   such    contract,  such   decision    is 
not  binding  upon  the  federal  courts : 
Gelpcke   v.   Dubuque,  1   Wall.    175  ; 
Havermeyer  v.  Iowa  County,  2  Wall. 
204 ;    Thompson   v.    Lee    County,    3 
Wall.   327  ;   Mitchell  v.  Burlington, 
4  AYall.  270  ;    Chicago  v.  Sheldon,  9 
Wall.    50;    Lee   v.    Rogers,  8  Wall 
181  ;    City  V.  Lamson,  9  Wall.  477 
Olcott  V.  Supervisors,   16  Wall.  678 
Ohio  Trust  Co.  v.   Debolt,   16  How 
416  ;  Pine  Grove  v.  Talcott,  19  Wall 
666  ;  Louisville,  etc.,  R.  Co.  v.  Gaines, 
12  C.  L.  X.  407. 


COMMON    PROVISIONS.  433 

able  remedies  and  punish  offences  against  law,  the  common  law,  as 
modified  and  changed  by  the  constitution  and  statutes  of  the  state 
■wherein  the  court  having  jurisdiction  of  such  civil  or  criminal  cause 
is  held,  so  far  as  the  same  is  not  inconsistent  with  the  Constitution 
and  laws  of  the  United  States,  shall  be  extended  to  and  govern  the 
said  courts  in  the  trial  and  disposition  of  the  cause,  and,  if  it  is  of  a 
criminal  nature,  in  the  infliction  of  punishment  on  the  party  found 
guilty. 

When  suits  in  equity  may  be  maintained. — Sec.  728.  Suits 
in  equity  shall  not  be  sustained  in  either  of  the  courts  of  the  United 
States  in  any  case  where  a  plain,  adequate  and  complete  remedy 
may  be  had  at  law,* 

Sec.  724.  In  the  trial  of  actions  at  law,  the  courts  of  the  United' 
States  may,  on  motion  and  due  notice  thereof,  require  the  parties 
to  produce  books  or  writings  in  their  possession  or  power,  which 
contain  evidence  pertinent  to  the  issue,  in  cases  and  under  circum- 
stances where  they  might  be  compelled  to  produce  the  same  by  the 
ordinary  rules  of  proceeding  in  chancery.  If  a  plaintiff  fails  to 
comply  with  such  order,  the  court  may,  on  motion,  give  the  like 
judgment  for  the  defendant  as  in  cases  of  nonsuit ;  and  if  a  de- 
fendant fails  to  comply  with  such  order,  the  court  may,  on  motion.^ 
give  judgment  against  him  by  default.^ 

^  Where  there  is  a  plain,  speedy  Grundy,  3  Pet.  210;  Watson  v.  Sutb- 
AND  adequate  REMEDY  AT  LAW. — Tliis  erland,  5  Wall.  74  ;  Oelrichs  v.  Spain, 
section  merely  declares  a  common  15  Id.  211;  Morgan  v.  Beloit,  7  Id. 
principle  in  relation  to  equity  juris-  613;  May  v.  Leclare,  11  Id.  217. 
diction.  We  have  already  considered  If  the  remedy  at  law  can  only  be 
the  equity  jurisdiction  of  federal  made  available  by  a  multiplicity  of 
courts  :  ante,  chs.  x.,  xii.  But  we  will  actions,  a  bill  may  be  tiled  in  equity  : 
here  note  the  substance  of  some  of  Garrison  v.  Memphis  Ins.  Co.,  19 
the  decisions  bearing  upon  this  sec-  How.  312;  Craine  w.  McCoy,  1  Bond 
tion.  The  language,  "  plain,  ade-  422  ;  Plummer  v.  Connecticut  Mutual 
quate  and  complete  remedy  ...  at  Ins.  Co.,  1  Holmes  267. 
law,"  it  has  been  held,  refers  to  the  '^  Notice  and  motion  to  produce. — 
common  law  and  not  to  the  statutes  A  motion  with  notice  to  the  opposite 
of  the  states:  Gordon  v.  Ilobart,  2  party  of  the  time  and  place  of  hearing. 
Sum,  401;  Dodge  v.  Woolsey,  18  and  a  plain  designation  or  description 
How.  331  ;  Cropper  v.-  Coburn,  2  of  the  papers  or  documents,  the  pro- 
Curt.  465  ;  Kimball  v.  Mobile,  3  duction  and  examination  of  which  is 
Woods  555.  To  prevent  the  juris-  desired,  is  sufficient:  Jacques  w.  Col- 
diction  of  the  federal  courts  in  equity  lins,  2  Blatch.  23  ;  United  States  v. 
there  must  be  a  speedy,  practical  and  Three  Tons,  6  Biss.  379.  The  notice 
efficient  remedy  at  law,  without  the  is  a  mere  preliminary  proceeding  to 
aid  of  a  court  of  equity :  Wright  v.  enable  the  party  to  bring  before  the 
Ellison,  1  Wall.  16  ;  Grand  Chute  v.  court  the  motion  for  the  order  to  pro- 
Winegar,'15  Id.  373;  Hungerford  v.  duce  the  paper  or  document,  and  at 
Sigerson,  20  How,  156;  Boyce  v.  the  time  fixed  for  the  making  of  the 
28 


434  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

The  act  of  June  22,  1874,  ch.  391,  §  5,  18  Stat.  186,  provides: 
That  in  all  suits  and  proceedings  other  than  criminal  arising 
under  any  of  the  revenue  laws  of  the  United  States,  the  attorney 
representing  the  government,  whenever,  in  his  belief,  any  business 
book,  invoice  or  paper,  belonging  to  or  under  the  control  of  the 
defendant  or  claimant,  will  tend  to  prove  any  allegation  made  by 
the  United  States,  may  make  a  written  motion,  particularly  de- 
scribing such  book,  invoice  or  paper,  and  setting  forth  the  allegation 
which  he  expects  to  prove;  and  thereupon  the  court  in  which  suit 
or  proceeding  is  pending  may,  at  its  discretion,  issue  a  notice  to 
the  defendant  or  claimant  to  produce^ such  book,  invoice  or  paper 
in  court,  at  a  day  and  hour  to  be  specified  in  said  notice,  which, 
together  with  a  copy  of  said  motion,  shall  be  served  formally  on  the 
defendant  or  claimant  by  the  United  States  marshal  by  delivering 
to  him  a  certified  copy  thereof,  or  otherwise  serving  the  same  as 
original  notices  of  suit  in  the  same  court  are  served;  and  if  the 
defendant  or  claimant  shall  fail  or  refuse  to  produce  such  book,  in- 
voice or  paper  in  obedience  to  such  notice,  the  allegations  stated  in 
the  said  motion  shall  be  taken  as  confessed  unless  his  failure  or  re- 
fusal to  produce  the  same  shall  be  explained  to  the  satisfaction  of 
the  court.  And  if  produced,  the  said  attorney  shall  be  permitted, 
under  the  direction  of  the  court,  to  make  examination  (at  which 

motion  the  defendant  has  a  ricrht  to  served  upon  the  opposite  party  or  his 

be  heard,  and  he  is  not  bound  to  pro-  attorney  :  Geyger  v.  Geygei",  2   Dall. 

duce  them  until  the  court  shall  order  332  ;  United  States  v.  469  Barrels,  10 

him  so  to  do,  and  is  in  no  default  I.  R.  R.  205, 

unless  he  nefflects  or  refuses  to  obey  The  order  can  only  be  to  produce 

the   order :   Thompson   v.   Selden,  20  the  books,   papers   or  documents   on 

How.  194;    Maye  v.  Carberry,  2  Cr.  the  trial,  and  the  party  seeking  them 

C.  C.  336  ;  Bas  v.  Steele,  3  Wash.  381  ;  has  no  right  to  examine  them  before 

Macomber  v.  Clai-ke,  3  Cr.  C.  C.  347.  that   time :    Triplett   v.  Bank,  3    Cr. 

The  order  will  not  be  granted  unless  C.   C.   646;    nor  can   he   require  the 

it  be   shown  that  the  paper  or  docu-  production    of    a   paper   that   would 

ment  exists  and  is  in  the  possession  subject  the  opposite  party  to  forfeit- 

of  the  other  party,  and  that  it  is  ma-  ure :   United    States  v.  28  Packages, 

terial   as  evidence  and   pertinent  to  Gilp.  306. 

the  issue  :  lasigi  v.  Brown,  1  Curt.  The  order  must  be  served. — The 

401  ;    Triplett  v.  Bank,   3   Cr.   C.   C.  order  for  the  production  of  the  paper 

646  ;  Jacques  v.  Collins,  2  Blatch.  23.  or  document  should  be  served  on  the 

The  opposite  party  may  show  that  the  party  a  reasonable   time    before  the 

document  is  not  in  his  possession  and  time  fixed   for   its   production  :    Ma- 

prevent  the    issuance  of  the   order :  comber  v.  Clarke,  3  Cr.  C.  C.   347. 

Bas  V.  Steele,  supra ;  United  States  The  penalty  for  refusal  is  a  nonsuit, 

V.  28  Packages,  Gilp.  306.  or  default,  as  the  circumstances  of  the 

The  notice  and  motion  should  be  case  may  require :  lasigi  i».- Brown,  1 

in  writing,   and   the   notice  may  be  Curt.  40l. 


COMMON   PROVISIONS. 


435 


examination  the  defendant  or  claimant,  or  his  agent,  may  be  present) 
of  such  entries  in  said  book,  invoice  or  paper  as  relate  to  or  tend 
to  prove  the  allegation  aforesaid,  and  may  offer  the  same  in  evidence 
on  behalf  of  the  United  States.  But  the  owner  of  said  books  and 
papers,  his  agent  or  attorney,  shall  have,  subject  to  the  order  of  the 
court,  the  custody  of  them,  except  pending  their  examination  in 
court  as  aforesaid. 

Power  to  impose  oaths  and  punish  contempts. — Sec.  725. 
The  said  courts  shall  have  power  to  impose  and  administer  all  nec- 
essary oaths,  and  to  punish,  by  fine  or  imprisonment,  at  the  discre- 
tion of  the  court,  contempts  of  their  authority ;  provided,  that 
such  power  to  punish  contempts  shall  not  be  construed  to  extend  to 
any  cases  except  the  misbehavior  of  any  person  in  their  presence, 
or  so  near  thereto  as  to  obstruct  the  administration  of  justice,  the 
misbehavior  of  any  of  the  officers  of  said  courts  in  their  official 
transactions,  and  the  disobedience  or  resistance  by  any  such  officer 
or  by  any  party,  juror,  witness  or  other  person,  to  any  lawful  writ, 
process,  order,  rule,  decree  or  command  of  the  said  courts.^ 


^  The  power  to  punish  for  con- 
tempts.— The  power  to  punish  for 
contempts  is  incidental  to  all  courts, 
as  this  is  necessary  to  the  other  powers 
granted  to  a  court:  United  States  v. 
Hudson,  9  Cr.  32 ;  Ex  parte  Robin- 
son, 19  Wall.  506. 

The  use  of  abusive  lan<i;uage  in  the 
court-room  is  a  contempt  of  court: 
United  States  v.  Emerson,  4  Cr.  C.  C. 
188.  It  is  also  a  contempt  of  court 
for  a  person  who  has  been  acquitted 
of  a  crirne  to  threaten  vengeance  on 
a  witness  against  him  in  the  presence 
of  the  court :  United  States  v.  Carter, 
3  Cr.  C.  C.  423  ;  or  for  a  person  to 
commit  an  assault  and  battery  in  the 
hall  of  entrance  to  the  room  where 
the  court  is  held :  United  States  v. 
Emerson,  4  Cr.  C.  C.  188. 

So  it  is  a  contempt  of  court  for  a 
person  who  is  summoned  as  a  juror 
in  a  criminal  case  to  express  an 
opinion  after  the  summons,  for  the 
purpose  of  disqualifying  himself  from 
serving  as  a  juror:  United  States  v. 
Devaughan,  3  Cr.  C.  C.  84 ;  or  for  a 
juror  to  escape  out  of  a  jury-room 
through  a  window,  against  the  com- 
mands of  the  bailiff:  Orfutt  v.  Parrott, 


1  Cr.  C.  C,  154  ;  or  for  a  juror  to  dis- 
obey the  order  of  the  court,  not  to 
converse  with  any  one  about  the 
case  :  In  re  May,  1  Fed.  Rep,  737. 

Witnesses  may  be  guilty  of  con- 
tempt.— A  witness  who  refuses  to  be 
sworn  according  to  law  is  guilty  of 
contempt  of  court :  United  iStates  v. 
Coolidge,  2  Gallis  364  ;  or  refuses  to 
answer  questions :  United  States  v. 
Caton,  1  Cr.  C.  C.  150 ;  or  to  obey 
the  requirements  of  a  summons  or 
subpoena:  Voss  v.  Luke,  1  Id.  331; 
United  States  v.  Williams,  4  Id.  372 ; 
Ex  parte  Pleasants,  4  Id.  314. 

If  the  witness  shows  no  disposition 
to  treat  the  process  of  the  court  with 
contempt,  but  is  unable  by  reason  of 
sickness  to  comply  with  the  process  ; 
or  is  detained  by  the  dangerous  ill- 
ness of  a  member  of  his  family,  or  by 
age,  infirmity,  or  by  any  other  cause 
which  renders  his  absence  from  home 
oppressive  or  dangerous  to  his  health, 
the  court  will  not  compel  his  attend- 
ance or  punish  him  for  a  contempt : 
Ex  parte  Beebes,  2  Wall.  Jr.  127. 

Officers  may  be  guilty  of  con- 
tempt.— An  officer  of  the  court  may 
be  guilty  of  contempt  in  disobeying 


436  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

New  trials. — Sec.  726.  All  of  the  said  courts  shall  have  power 
to  grant  new  trials,  in  cases  where  there  has  been  a  trial  by  jury,  for 
reasons  for  which  new  trials  have  been  usually  granted  in  the  courts 
of  law. 

Power  to  hold  to  security  of  the  peace. — Sec.  727.  The 
judges  of  the  Supreme  Court  and  of  the  circuit  and  district  courts, 
the  commissioners  of  the  circuit  courts,  and  the  judges  and  other 
magistrates  of  the  several  states  who  are  or  may  be  authorized  by 
law  to  make  arrests  for  offences  against  the  United  States,  shall 
have  the  like  authority  to  hold  to  security  of  the  peace  and  for 
good  behavior,  in  cases  arising  under  the  Constitution  and  laws  of 
the  United  States,  as  may  be  lawfully  exercised  by  any  judge 
or  justice  of  the  peace  of  the  respective  states,  in  cases  cognizable 
before  them. 

Power  to  enforce  awards  of  consuls. — Sec.  728.  The  dis- 
trict and  circuit  courts  and  the  commissioners  of  the  circuit  courts 
shall  have  power  to  carry  into  effect,  according  to  the  true  intent 
and  meaning  thereof,  the  award  or  arbitration  or  decree  of  any 
consul,  vice-consul  or  commercial  agent  of  any  foreign  nation,  made 
or  rendered  by  virtue  of  authority  conferred  on  him  as  such  consul, 
vice-consul  or  commercial  agent  to  sit  as  judge  or  arbitrator  in 
such  differences  as  may  arise  between  the  captains  and  crews  of  the 
vessels  belonging  to  the  nation  whose  interests  are  committed  to  his 
charge;  application  for  the  exercise  of  such  power  being  first  made 

an   order  to  pay  money  received  by  past  act  shown  contempt  for  the  court ; 

him    in  his  official  capacity :  Bagley  and  (2)  Where  he  continues  his  con- 

V.  Yates,  3   McLean  465;  In  re  Pit-  tempt  by  refusing  to  comply  with  its 

man,  1   Curt.    186;  United  States  v.  orders.     In  the  former  case  the  court 

Mann,  2  Brock.  1.    An  attorney  is  an  will    determine   the   amount  of    the 

officer  of  the  court,  in  contemplation  punishment  from  the  natureand  grav- 

of  law,  and  if  he  collects  money  for  ity  of  the  case  ;  in  the  latter  case  the 

his  client  which  he  refuses  to  pay  over  party  refusing   to  obey  the   order  of 

to  him.  he  is  liable  to  an  attachment  the    court   should  be   fined   and   im- 

for  a  contempt.     But  if  he  has  cross-  prisoned    until    he   performs  the   act 

demands  against   his  client,  and  has  required  of  him  by  the  order  pf  the 

not  acted  dishonestly  in  not  paying  court,  or  shows   that  it  is  not  in   his 

over  the  money,  he  is  not  guilty  of  power  to  do  so  :  In  re  Chiles,  22  Wall, 

contempt  and  not  properly  liable  to  157. 

an  attachment :  In  re  Paschal,  10  The  statute  limits  the  punishment 
Wall.  483.  to  fine  and  imprisonment,  hence  an 
Punishment  of  the  partv. — There  attorney  cannot  be  disbarred  for  con- 
are  two  classes  of  cases  in  which  tempt,  although  he  may  for  miscon- 
punishment  for  contempt  of  court  duct:  Ex  jmrte  Robinson,  19  Wall, 
can  be  properly  administered:  (1)  506. 
Where  the  guilty  party  has  by  some 


COMMON    PROVISIONS.  437 

to  such  court  or  commissioner  by  petition  of  such  consul,  vice-con- 
sul or  commercial  agent.  And  said  courts  and  commissioners  may 
issue  all  proper  remedial  process,  mesne  and  final,  to  carry  into  full 
effect  such  award,  arbitration  or  decree,  and  to  enforce  obedience 
thereto  by  imprisonment  in  the  jail  or  other  place  of  confinement 
in  the  district  in  which  the  United  States  may  lawfully  imprison 
any  person  arrested  under  the  authority  of  the  United  States, 
until  such  award,  arbitration  or  decree  is  complied  with,  or  the 
parties  are  otherwise  discharged  therefrom  by  the  consent  in 
writing  of  such  consul,  vice-consul  or  commercial  agent,  or  his 
successor  in  office,  or  by  the  authority  of  the  foreign  government 
appointing  such  consul,  vice-consul  or  commercial  agent;  provided^ 
however,  that  the  expenses  of  the  said  imprisonment  and  mainten- 
ance of  the  prisoners,  and  the  cost  of  the  proceedings,  shall  be  borne 
by  such  foreign  government,  or  by  its  consul,  vice-consul  or  com- 
mercial agent  requiring  such  imprisonment.  The  marshals  of  the 
United  States  shall  serve  all  such  process,  and  do  all  other  acts  nec- 
essary and  proper  to  carry  into  effect  the  premises,  under  the  author- 
ity of  the  said  courts  and  commissioners. 

Offences  punishable  with  death  ;  where  tried. — Sec.  729. 
The  trial  of  offences  punishable  with  death  shall  be  had  in  the 
county  where  the  offence  was  .committed,  where  that  can  be  done 
without  great  inconvenience. 

The  act  of  January  29,  1880,  ch.  17,  §  5,  21  Stat.  63,  provides: 
Prosecutions  for  crimes  or  offences  hereafter  committed  in  either 
of  the  subdivisions  (for  the  southern  district  of  Georgia)  shall 
be  cognizable  within  such  division  ;  and  all  prosecutions  for 
crimes  or  offences  heretofore  committed  within  either  of  said 
counties,  taken  as  aforesaid  from  the  northern  district,  or  com- 
mitted in  the  southern  district  as  hitherto  constituted,  shall 
be  commenced  and  proceeded  with  as  if  this  act  had  not  been 
passed. 

The  act  of  June  19,  1878,  ch.  326,  §  6,  20  Stat.  175,  provides  : 
Any  person  charged  with  violating  any  of  the  penal  or  criminal 
statutes  of  the  United  States  of  which  the  said  circuit  or  district 
courts  of  the  western  district  (of  Michigan)  have  jurisdiction,  shall 
be  proceeded  against  by  indictment  or  otherwise,  within  the  division 
of  said  district  where  the  alleged  offence  or  offences  shall  be  com- 
mittedj  and  shall  have  his  or  her  trial  at  a  term  of  the  said  court 


438     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

held  in  said  division,  unless,  for  cause  shown,  the  judge  shall  other- 
wise direct ;  and  one  grand  and  one  petit  jury  only  shall  be  sum- 
moned, and  serve  in  both  said  courts  at  each  term  thereof;  and 
jurors  shall  be  selected  and  drawn  from  the  division  of  the  said 
district  in  which  thoy  reside  and  in  which  the  terms  of  the  said  cir- 
cuit and  district  courts  to  which  they  are  summoned  are  held. 

The  act  of  January  21, 1879,  eh.  20,  §  2,  20  Stat.  263,  provides  : 
All  offences  hereafter  committed  in  either  of  said  divisions  (of  the 
western  district  of  Missouri)  shall  be  cognizable  and  indict- 
able within  the  divisions  where  committed ;  and  all  grand  and 
petit  jurors  summoned  for  service  in  each  division  shall  be  inhab- 
itants thereof.  And  all  offences  heretofore  committed  within 
said  district  shall  be  prosecuted  and  tried  as  if  this  act  had  not 
passed. 

The  act  of  June  8,  1878,  ch.  169,  §  4,  20  Stat.  102,  provides  : 
All  offences  committed  in  either  of  the  subdivisions  (of  the 
northern  district  of  Ohio)  shall  be  cognizable  and  indictable  within 
said  division. 

The  act  of  February  4, 1880,  ch.  18,  §  5,  21  Stat.  64,  provides :  All 
prosecutions  for  crimes  or  offences  hereafter  committed  in  either 
of  the  subdivisions  (of  the  southern  district  of  Ohio)  shall  be 
cognizable  within  such  division ;  and  all  prosecutions  for  crimes  or 
offences  heretofore  committed  within  either  of  said  counties  taken 
as  aforesaid  from  the  northern  district,  or  committed  in  the  southern 
district  as  hitherto  constituted,  shall  be  commenced  and  proceeded 
with  as  if  this  act  had  not  been  passed. 

The  act  of  June  11, 1880,  ch.  203,  §  6,  21  Stat.  176,  provides  : 
All  prosecutions  for  crimes  or  offences  hereafter  committed  in  either 
of  the  subdivisions  (for  the  eastern  district  of  Tennessee)  shall  be 
cognizable  within  such  division  ;  and  all  prosecutions  for  crimes  or 
offences  heretofore  committed  within  said  county  taken  as  afore- 
said from  the  middle  district,  or  committed  in  the  eastern  district  as 
hitherto  constituted,  shall  be  commenced  and  proceeded  with  as  if 
this  act  had  not  been  passed. 

The  act  of  June  14,  1880,  ch.  213,  §  1,  21  Stat.  198,  provides : 
And  all  prosecutions  in  either  of  said  districts  (of  Texas)  for  offences 
against  the  laws  of  the  United  States  shall  be  tried  in  that  division 
of  the  district  to  which  process  for  the  county  in  which  said  offences 
are  committed  is  by  said  section  required  to  be  returned.     And  all 


COMMON   PROVISIONS.  439 

writs  and  recognizances  in  said  prosecutions  shall  be  returned  to 
that  division  in  which  said  prosecutions  bj  this  act  are  to  be  tried. 

Offences  on  the  high  seas  ;  where  triable. — Sec.  7b0. 
The  trial  of  all  offences  committed  upon  the  high  seas  or  elsewhere, 
out  of  the  jurisdiction  of  any  particular  state  or  district,  shall  be 
in  the  district  where  the  offender  is  found,  or  into  which  he  is  first 
brought.^ 

Offences  begun  in  one  district  and  completed  in  another. 
— Sec.  731.  When  any  offence  against  the  United  States  is  begun 
in  one  judicial  district  and  completed  in  another,  it  shall  be  deemed 
to  have  been  committed  in  either,  and  may  be  dealt  with,  inquired 
of,  tried,  determined  and  punished  in  either  district,  in  the  same 
manner  as  if  it  had  been  actually  and  wholly  committed  therein. 

Suits  for  pecuniary  penalties  and  forfeitures. — Sec.  732. 
All  pecuniary  penalties  and  forfeitures  may  be  sued  for  and  re- 
covered either  in  the  district  where  they  accrue  or  in  the  district 
where  the  offender  is  found. 

Suits  for  internal  revenue  taxes;  where  brought. — Sec. 
733.  Taxes  accruing  under  any  law  providing  internal  revenue 
may  be  sued  for  and  recovered  either  in  the  district  where  the  lia- 
bility for  such  tax  occurs  or  in  the  district  where  the  delinquent 
resides. 

Seizures  ;  where  cognizable. — Sec.  734.  Proceedings  on 
seizures  for  forfeiture  under  any  law  of  the  United  States  made  on 
the  high  seas  may  be  prosecuted  in  any  district  into  which  the  prop- 
erty so  seized  is  brought  and  proceedings  instituted.  Proceedings 
on  such  seizures  made  within  any  district  shall  be  prosecuted  in  the 
district  where  the  seizure  is  made,  except  in  cases  where  it  is  other- 
wise provided. 

Captures  of  insurrectionary  property. — Sec.  735.  As 
amended  by  act  of  February  18,  1875,  cb.  80,  18  Stat.  318.   Pro- 

^  This    section    relates    to    crimes  offence  was  committed  was  bound  to 

within   the   maritime  jurisdiction  of  a  port  in  the  district,  and  the  accused 

the  court :  United  States  v.  Alberty,  1  is  in  custody  in  the  same  district,  this  is 

Hemp.  444.  If  the  offence  is  committed  evidence  that  the  offender  was  appre- 

upon  the  high  seas,  and   the  offender  hended  in  that  district :    United  States 

comes  in  the  ship  into  one  district,  yet  v.  Mingo,  2  Curt.  1  ;  United  States  v. 

he  may  be  tried  in  another  district  if  Magill,    1    Wash.    463  ;  4    Dall.   425. 

he  is  first  apprehended  there  :  United  See    also    United    States    v.    Bird,    1 

States    V.    Thompson,    1    Sum.    168;  Sprague  299  ;   United  States  r.  Baker, 

United  States  v.  Corrie,  23  Law  Hep.  5  Bhitch.  6  :    United  States  v.  Arwo, 

145.     But  if  the  vessel  on  which  the  19  Wall.  486. 


440  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

ceedings  for  the  condemnation  of  any  property  captured,  whether 
on  the  high  seas  or  elsewhere  out  of  the  limits  of  any  judicial  dis- 
trict, or  within  any  district,  on  account  of  its  being  purchased  or 
acquired,  sold  or  given,  with  intent  to  use  or  employ  the  same,  or 
to  suffer  it  to  be  used  or  employed,  in  aiding,  abetting  or  promoting 
any  insurrection  against  the  government  of  the  United  States,  or 
knowingly  so  used  or  employed  by  the  owner  thereof,  or  with  his 
consent,  may  be  prosecuted  in  any  district  where  the  same  may  be 
seized,  or  into  which  it  may  be  taken  and  proceedings  first  insti- 
tuted. 

Proceedings  to  enjoin  Comptroller  of  the  Currency. — Sec. 
736.  All  proceedings  by  any  national  banking  association  to  enjoin 
the  Comptroller  of  the  Currency,  under  the  provisions  of  any  law 
relating  to  national  banking  associations,  shall  be  had  in  the  district 
where  such  association  is  located. 

When  a  part  of  several  defendants  cannot  be  served. — 
Sec.  ISl.  When  there  are  several  defendants  in  any  suit  at  law  or 
in  equity,  and  one  or  more  of  them  are  neither  inhabitants  of  nor 
found  within  the  district  in  which  the  suit  is  brought,  and  do  not 
voluntarily  appear,  the  court  may  entertain  jurisdiction  and  pro- 
ceed to  the  trial  and  adjudication  of  the  suit  between  the  parties 
who  are  properly  before  it ;  but  the  judgment  or  decree  rendered 
therein  shall  not  conclude  or  prejudice  other  parties  not  regularly 
served  with  process  nor  voluntarily  appearing  to  answer  ;  and  non- 
joinder of  parties  who  are  not  inhabitants  of  nor  found  within  the 
district,  as  aforesaid,  shall  not  constitute  matter  of  abatement  or 
objection  to  the  suit.^ 

^  Under  the  provisions  of  this  sec-  well,  1  Black  566  ;  and  the  voluntary 

tion  any  of  the  parties  to  a  joint  con-  appearance  of  a  defendant  in  such  a 

tract  may  be  sued  without  joining  the  case,  over   whom    the    court   has  no 

others   who   are    citizens    of  another  jurisdiction,  vpould  not  defeat  it :  Tay- 

state  :    Clearwater    v.    Meridith,    21  lor  ?;.  Cook,  2  McLean  516. 

How.  4S9  ;  Doremus  v.  Bennet,  4  Mc-  Parties  to  a  bill. — There  are  three 

Lean  224;  and  if  there  are    several  classes  of  parties   to  a  bill:  1.   The 

executors   an    action    may    be    main-  formal  parties.    2.  Persons  having  an 

tained    aj^ainst    one     although      the  intei'est  in   the   controversy  and  who 

others  may  not  be  found  in   the  dis-  ought  generally  to  be  made  parties 

trict :  United  States  v.  Backus,  6  Mc-  in  order  that  the  court  may  act  on 

Lean  443  :  and  if  a  creditor   has   in-  that  rule  which  requires  it  to  decide 

stituted  a  suit  against  partners,  some  on  and  finally  determine   the    entire 

of  whom    are    non-residents   of    the  controversy,  and  do  complete  justice 

district,  he  may  discontinue  the  suit  by  adjusting  all  the  rights  involved 

as  to  the  non-residents   and  continue  in    it.      If,    however,   their   interests 

it  as  to  the  others  :  Inbusch  v.  far-  are   separable    from   those    of    other 


COMMON    PROVISIONS.  441 

Suits  in  equity  against  absent  defendants. — Sec.  738.  As 
amended  by  act  of  March  3,  1875,  ch.  137,  §  8,  18  Stat.  472.  That 
when  in  any  suit  commenced  in  any  circuit  court  of  the  United 
States,  to  enforce  any  legal  or  equitable  lien  upon  or  claim  to,  or 
to  remove  any  incumbrance  or  lien  or  cloud  upon  the  title,  to  real 
or  personal  property  within  the  district  where  such  suit  is  brought, 
one  or  more  of  the  defendants  therein  shall  not  be  an  inhabitant 
of,  or  found  within,  the  said  district,  or  shall  not  voluntarily 
appear  thereto,  it  shall  be  lawful  for  the  court  to  make  an  order 
directing  such  absent  defendant  or  defendants  to  appear,  plead, 
answer  or  demur,  by  a  day  certain  to  be  designated,  Avhich  order 
shall  be  served  on  such  absent  defendant  or  defendants,  if  prac- 
ticable, wherever  found,  and  also  upon  the  person  or  persons  in 
possession  or  charge  of  said  property,  if  any  there  be  ;  or  where 
such  personal  service  upon  such  absent  defendant  or  defendants  is 
not  practicable,  such  order  shall  be  published  in  such  manner  as 
the  court  may  direct,  not  less  than  once  a  week  for  six  consecutive 
weeks ;  and  in  case  such  absent  defendant  shall  not  appear,  plead, 
answer  or  demur  within  the  time  so  limited,  or  within  some  further 
time,  to  be  allowed  by  the  court,  in  its  discretion  and  upon  proof  of 

parties  before  the  court,  so  that  the  sion  of  the  property  given  to  secure 
court  can  proceed  to  a  decree  and  the  payment  thereof,  he  is  a  necessary 
do  complete  and  final  justice  without  party  and  must  be  before  the  court  in 
affectini;;  the  interests  of  those  not  the  adjudication  of  the  matter:  Wil- 
before  the  court,  the  latter  are  not  Hams  v.  Bankhead,  19  Wall.  563; 
indispensable.  3.  Persons  who  have  and  if  the  bill  seeks  to  hold  a  surety 
not  only  an  interest  in  the  contro-  liable,  the  principal  is  also  a  necessary 
versy,  but  an  interest  of  such  a  na-  party  :  Robertson  v.  Carson,  19  Wall, 
ture  that  a  final  decree  cannot  be  94.  If  the  bill  is  to  set  aside  a  sale 
made  without  either  affecting  that  made  between  parties,  the  vendor  is  a 
interest  or  leaving  the  controversy  in  necessary  party  :  Coiron  v.  Millaudon, 
such  a  condition  that  its  final  deter-  19  How.  113;  and  if  partners  bring 
mination  may  be  wholly  inconsistent  an  action  for  a  debt  due  the  firm,  all 
with  equity  and  good  conscience :  the  partners  are  necessary  parties : 
Shields  v.  Barrow,  17  How.  130.  In  Parsons  v.  Howai-d,  2  Woods  1.  So 
the  latter  case  the  court  cannot,  under  if  a  bill  is  filed  by  a  stockholder  to 
the  provisions  of  this  section,  proceed  obtain  his  rights,  where  his  stock  has 
to  a  decree  in  the  absence  of  par-  been  fraudulently  transferred  on  the 
ties  whose  rights  must  necessarily  books  of  the  corporation,  the  corpora- 
be  affected  by  it:  Mallow  v.  Hinde,  tion  is  a  necessary  party  to  the  suit: 
12  Wh.  193;  Northern  Ind.  R.  Co.  v.  Kendig  v.  Dean,'  97  U.  S.  433.  And 
Michigan  Cent.  R.  Co.,  15  How.  233;  a  corporation  is  an  indispensable 
Ribon  V.  Railroad  Co.,  16  Wall.  446;  party  to  a  bill  filed  by  a  receiver  to 
Williams  v.  Bankhead,  19  Wall.  563.  have  its  assets  applied  to  the  payment 
Who  are  necessary  parties. — If  of  a  debt  :  Brigham  v.  Luddington, 
a  person  claims  an  interest  in  the  12  Blatch.  237. 
fund  in  controversy,  and  is  in  posses- 


442  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

the  service  or  publication  of  said  order,  and  of  the  performance  of 
the  directions  contained  in  the  same,  it  shall  be  lawful  for  the  court 
to  entertain  jurisdiction,  and  proceed  to  the  hearing  and  adjudica- 
tion of  such  suit  in  the  same  manner  as  if  such  absent  defendant 
had  been  served  with  process  within  the  said  district ;  but  said  ad- 
judication shall,  as  regards  said  absent  defendant  or  defendants 
■without  appearance,  affect  only  the  property  which  shall  have  been 
the  subject  of  the  suit  and  under  the  jurisdiction  of  the  court 
therein,  within  such  district.  And  when  a  part  of  the  said  real  or 
personal  property  against  which  such  proceeding  shall  be  taken 
shall  be  within  another  district,  but  within  the  same  state,  said 
suit  may  be  brought  in  either  district  in  said  state ;  provided^  how- 
ever^ that  any  defendant  or  defendants  not  actually  personally 
notified  as  above  provided  may,  at  any  time  within  one  year  after 
final  judgment  in  any  suit  mentioned  in  this  section,  enter  his  ap- 
pearance in  said  suit  in  said  circuit  court,  and  thereupon  the  said 
court  shall  make  an  order  setting  aside  the  judgment  therein 
and  permitting  said  defendant  or  defendants  to  plead  therein  on 
payment  by  him  or  them  of  such  costs  as  tlie  court  shall  deem  just; 
and  thereupon  said  suit  shall  be  proceeded  with  to  final  judgment 
according  to  law.^ 

^  The   proper    practice   under    this  for  he  has  until  that  day  to   appear 

provision  was  pointed  out  by  Judjie  voluntarily  ;  and  whether  a  personal 

Dillin,  in  Bronson  v.  Keokuk,  2  Dill,  service  is  practicable  or  not  may  be 

498.     The   bill   in   such   case   should  shown  by  the  complainant  or  his  at- 

aver  the  citizenship  and  residence  of  torney  or  anient  most  conversant  with 

the  respective   defendants,   and   sub-  the  facts.     If  it  appears  that  the  de- 

poenas  should  be  issued  a^ijainst  all  of  fendant    resides    in    another  district, 

them.      If  the  marshal  return  some  service  may  be  directed  to  be  made  by 

of  them  not  found,  and  they  do  not  the  marshal  of  that  district,  and  per- 

appear,  the  court,  on  the  showing  of  haps  the   court  may  make  a  special 

these  and  other  necessary  facts,  should  order  directing;  or  authorizing  service 

make  an  order  for  them  to  appear  and  by  some  other  officer, 
plead  by  a  certain  day,  and  direct  the         A    claim    of    a   given    number    of 

mode  of  serving  the  same.     Personal  shares  of  stock  in  a  corporation,  but 

service  must    be    made    in  all  cases  which    are    not    designated,    is    not 

Avhere  the  residence  of  the  absent  de-  property  within  the  meaning  of  this 

fendant    is    known  or  can  be    ascer-  section,  but  a  mere  chose  in  action, 
tained,  and  resort  can  be  had  to  con-        A  debtor  may  be  made  a  party  by 

structive  notice  by  publication  only  an  order  of  publication,  if  the  bill  is 

where  the  better  mode  is  not  possible  by  a  creditor  to  reach  assets  of  a  debtor 

or  not  practicable  within  a  reasonable  and  have  them  applied  to  the  payment 

time  and  by  the  exercise  of  reasonable  of  his  debt.     But  if  they  ai-e  citizens 

diligence.     The    order    directing   an  of  the  same  state  an  order  will  not  be 

absent  defendant  to  appear  cannot  be  granted:  Bingham  v.  Luddington,  12 

made  until  the  return  day  of  the  writ,  Blatch.  237. 


common  provisions.  448 

Suit  brought  where  defendants  reside  or  are  found. — 
See.  739.  Except  in  the  cases  provided  in  the  next  three  sections, 
no  person  shall  be  arrested  in  one  district  for  trial  in  another,  in 
any  civil  action  before  a  circuit  or  district  court;  and  except  in  the 
said  cases  and  the  cases  provided  by  the  preceding  section,  no 
civil  suit  shall  be  brought  before  either  of  said  courts  against  an 
inhabitant  of  the  United  States,  by  any  original  process,  in  any 
other  district  than  that  of  which  he  is  an  inhabitant  or  in  which  he 
is  found  at  the  time  of  serving  the  writ.^ 

The  act  of  January  29,  1880,  ch.  17,  §  4,  21  Stat.  63,  provides: 
All  suits  not  of  a  local  nature  in  the  circuit  and  district  courts 
for  the  southern  district  of  Georgia  against  a  single  defendant,  in- 
habitant of  said  state,  must  be  brought  in  the  division  of  the  dis- 
trict where  he  resides ;  but  if  there  are  two  or  more  defendants  re- 
siding in  different  divisions  of  the  district,  such  suits  may  be 
brouirht  in  either  division.  All  issues  of  fact  in  said  suits  shall  be 
tried  at  a  terra  of  the  court  held  in  the  division  where  the  suit  is  so 
brought. 

The  act  of  June  4,  1880,  ch.  120,  §  2,  21  Stat.  155,  provides: 
That  all  civil  suits  not  of  a  local  nature  which  shall  be  hereafter 
brought  in  the  circuit  or  district  court  of  the  United  States  in  said 
district  of  Iowa  must  be  brought  in  the  division  of  the  district 
where  the  defendant  or  defendants  reside;  but  if  there  are  two  or 
more  defendants  residieg  in  different  divisions,  the  plaintiff  may  sue 
in  either  one  of  the  divisions  in  which  a  defendant  resid-es.  All 
issues  of  fact  triable  in  either  of  said  courts  shall  be  tried  in  the 
division  where  the  defendant  or  one  of  the  defendants  reside,  unless 
by  consent  of  both  parties  the  case  shall  be  removed  to  some  other 
division.  Where  the  defendant  is  a  non-resident  of  the  district, 
suit  may  be  brought  in  any  division  where  property  or  the  defend- 
ant is  found. 

The  act  of  June  19,  1878,  ch.  326,  §  3,  20  Stat.  175,  provides  : 
That  all  suits  and  proceedings  hereafter  to  be  brought  in  the  said 
circuit  or  district  courts  of  the  western  district  of  Michigan,  not  of 
a  local  nature,  shall  be  brought  in  a  court  of  the  division  of  the 
district  where  the  defendant  resides;  but  if  there  be  more  than  one 
defendant,  and  they  reside  in  different  divisions  of  the  district,  the 
plaintiff  may  sue  in  either  division,  and  send  duplicate  writ  or  writs 

^  Vide  act  of  March  3,  1875,  ch.  137,  I  1,  18  Stat.  470. 


444  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

to  the  Other  defendants,  on  ■which  the  plaintiff  or  his  attorney  shall 
endorse  that  the  writ  thus  sent  is  a  copy  of  a  writ  sued  out  of  a 
court  of  the  proper  division  of  the  said  district ;  and  the  said  writs, 
when  executed  and  returned  into  the  office  from  which  they  issued, 
shall  constitute  one  suit,  and  be  proceeded  in  accordingly." 

The  act  of  January  21,  1879,  eh.  20,  §  3,  20  Stat.  263,  provides  : 
All  civil  suits  not  of  a  local  character  which  shall  be  hereafter 
brought  in  the  district  or  circuit  courts  of  the  United  States  for  the 
western  district  of  Missouri  in  either  of  said  divisions,  against  a 
single  defendant,  or  where  all  the  defendants  reside  in  the  same 
division  of  said  district,  shall  be  brought  in  the  division  in  which 
the  defendant  or  defendants  reside ;  but  if  there  are  two  or  more 
defendants  residing  in  different  divisions,  such  suit  may  be  brought 
in  either  division,  and  all  mesne  and  final  process  subject  to  the 
provisions  of  this  act,  issued  in  either  of  said  divisions,  may  be 
served  and  executed  in  either  or  both  of  the  divisions. 

The  act  of  June  8,  1878,  ch.  169,  §  3,  20  Stat.  102,  provides  : 
All  suits  not  of  a  local  nature  in  the  circuit  and  district  courts  (of 
the  northern  district  of  Ohio)  against  a  single  defendant,  inhabitant 
of  such  state,  must  be  brought  in  the  division  of  the  district  where 
he  resides;  but  if  there  are  two  or  more  defendants,  residing  in 
different  divisions  of  the  district,  such  suits  may  be  brought  in 
either  division.  All  issues  of  fact  in  such  suits  shall  be  tried  at  a 
term  of  the  court  held  in  the  division  where  the  suit  is  so  brought. 

The  act  of  February  4,  1880,  ch.  18,  §  4,  21  Stat.  64,  provides : 
All  suits  not  of  a  local  nature  in  the  circuit  and  district  courts 
(for  the  southern  district  of  Ohio)  against  a  single  defendant,  in- 
habitant of  said  state,  must  be  brought  in  the  division  of  the  dis- 
trict where  he  resides ;  but  if  there  are  two  or  more  defendants  re- 
siding in  different  divisions  of  the  district,  such  suits  may  be  brought 
in  either  division.  All  issues  of  fact  in  said  suits  shall  be  tried  at 
a  term  of  the  court  held  in  the  division  where  the  suit  is  so 
brought. 

The  act  of  June  11,  1880,  ch.  203,  §  5,  21  Stat.  176,  provides: 
All  suits  not  of  a  local  nature  in  the  circuit  and  district  courts 
(for  the  eastern  district  of  Tennessee)  against  a  single  defendant, 
inhabitant  of  said  state,  must  be  brought  in  the  division  of  the  dis- 
trict where  he  resides ;  but  if  there  are  two  or  more  defendants  re- 
siding in  different  divisions  of  the  district,  such  suits  may  be  brought 


COMMON    PROVISIONS.  445 

in  either  division.  All  issues  of  fact  in  said  suits  shall  be  tried  at 
a  term  of  the  court  held  in  the  division  where  the  suit  is  so 
brought. 

The  act  of  June  20,  1878,  ch.  359,  §  1,  20  Stat.  235,  provides : 
All  suits  not  of  a  local  character  which  shall  be  hereafter  brought 
in  the  dis'trict  or  circuit  court  of  the  United  States  for  the  western 
district  of  Tennessee,  against  a  single  defendant,  or  where  all  the 
defendants  reside  in  the  same  division  of  said  district,  shall  be 
brought  in  the  division  in  which  the  defendant  or  defendants  reside  ; 
but  if  there  are  two  or  more  defendants  residing  in  diflFerent  di- 
visions, such  suit  may  be  brought  in  either  division,  and  duplicate 
writs  may  be  sent  to  the  other  defendants.  The  clerk  issuing  such 
duplicate  writs  shall  endorse  thereon  that  it  is  a  true  copy  of  a  writ 
sued  out  in  the  proper  division  of  the  district,  and  the  original  and 
duplicate  writs  when  executed  and  returned  into  the  office  from 
which  they  shall  have  issued  shall  be  proceeded  in  as  one  suit,  and 
all  issues  of  fact  in  such  suits  shall  be  tried  in  the  division  where 
the  suit  is  so  brought. 

Suits  not  of  a  local  nature. — Sec.  740.  When  a  state  con- 
tains more  than  one  district,  every  suit  not  of  a  local  nature,  in  the 
circuit  or  district  courts  thereof,  against  a  single  defendant,  inhab- 
itant of  such  state,  must  be  brought  in  the  district  where  he  resides; 
but  if  there  are  two  or  more  defendants,  residing  in  different  dis- 
tricts of  the  state,  it  may  be  brought  in  either  district,  and  a  dupli- 
cate writ  may  be  issued  against  the  defendants,  directed  to  the 
marshal  of  any  other  district  in  which  any  defendant  resides.  The 
clerk  issuing  the  duplicate  writ  shall  endorse  thereon  that  it  is  a 
true  copy  of  a  writ  sued  out  of  the  court  of  the  proper  district ;  and 
such  original  and  duplicate  writs,  when  executed  and  returned  into 
the  office  from  which  they  issue,  shall  constitute  and  be  proceeded 
on  as  one  suit;  and  upon  any  judgment  or  decree  rendered  therein, 
execution  may  be  issued,  directed  to  the  marshal  of  any  district  in 
the  same  state. 

Suits  of  a  local  nature  in  states  containing  several  dis- 
tricts.— Sec.  741.  In  suits  of  a  local  nature,  where  the  defendant 
resides  in  a  dijGferent  district,  in  the  same  state,  from  that  in  which 
the  suit  is  brought,  the  plaintiff  may  have  original  and  final  pro- 
cess against  him,  directed  to  the  marshal  of  the  district  in  which  he 
resides. 


416  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

When  land  lies  in  different  districts. — Sec.  742.  Any 
suit  of  a  local  nature,  at  law  or  in  equity,  where  the  land  or  other 
subject-matter  of  a  fixed  character  lies  partly  in  one  district  and 
partly  in  another,  within  the  same  state,  may  be  brought  in  the 
circuit  or  district  court  of  either  district ;  and  the  court  in  which  it 
is  brought  shall  have  jurisdiction  to  hear  and  decide  it,  an  J  to  cause 
mesne  or  final  process  to  be  issued  and  executed,  as  fully  as  if  the 
said  subject-matter  were  wholly  within  the  district  for  which  such 
court  is  constituted. 

Where  actions  may  be  commenced  in  Indiana. — Sec.  743. 
In  the  district  of  Indiana  all  actions  of  which  the  circuit  and  dis- 
trict courts  have  jurisdiction  may  be  instituted  in  said  courts,  re- 
spectively, held  at  New  Albany  and  Evansville,  in  the  first  instance, 
by  filing  the  proper  pleadings  or  other  papers  in  the  offices  of  the 
deputy  clerks  performing  the  duties  of  clerks  of  said  courts  respec- 
tively ;  and  all  proper  and  lawful  process  shall  issue  therefrom  in 
the  same  manner  as  from  other  circuit  and  district  courts  in  like 
cases. 

Where  suits  may  be  brought  in  Iowa. — Sec.  744.  In  the 
district  of  Iowa  all  suits  not  of  a  local  nature  in  the  district  court 
against  a  single  defendant,  inhabitant  of  such  state,  must  be  brought 
in  the  division  of  the  district  where  he  resides  ;  but  if  there  are  two 
or  more  defendants,' residing  in  diff'erent  divisions  of  the  district, 
such  suits  may  be  brought  in  either  division,  and  duplicate  writs 
may  be  sent  to  the  other  defendants.  The  clerk  issuing  the  dupli- 
cate writ  shall  endorse  thereon  that  it  is  a  true  copy  of  a  writ  sued 
out  of  the  court  in  the  proper  division  of  the  district ;  and  the 
original  and  duplicate  writs,  when  executed  and  returned  into  the 
office  from  which  they  issue,  shall  constitute  and  be  proceeded  in 
as  one  suit.  All  issues  of  fact  in  such  suits  shall  be  tried  at  a 
term  of  the  court  held  in  the  division  where  the  suit  is  so  brought. 

Where  suits  may  be  brought  in  Kentucky. — Sec.  745. 
In  the  district  of  Kentucky  the  clerks  of  the  circuit  and  district 
courts,  respectively,  upon  issuing  original  process  in  a  civil  action, 
shall  make  it  returnable  to  the  court  nearest  to  the  county  of  the 
residence  of  the  defendant,  or  of  that  defendant  whose  county  is 
nearest  a  court,  if  he  have  information  sufficient,  and  shall  imme- 
diately, upon  payment  by  the  plaintiff"  of  his  fees  accrued,  send  the 
papers  filed  to  the  clerk  of  the  court  to  which  the  process  is  made 


COMMON   PROVISIONS.  447 

returnable;  and  whenever  the  process  is  not  thus  made  returnable, 
any  defendant  may,  upon  motion,  on  or  before  the  calling  of  the 
cause,  have  it  transferred  to  the  court  to  which  it  should  have  been 
sent  had  the  clerk  known  the  residence  of  the  defendant  when  the 
action  was  brought. 

Causes  in  progress  of  trial,  new  term. — Sec.  746.  When 
the  trial  or  hearing  of  any  cause,  civil  or  criminal,  in  a  circuit  or 
district  court,  has  been  commenced  and  is  in  progress  before  a  jury 
or  the  court,  it  shall  not  be  stayed  or  discontinued  by  the  arrival 
of  the  time  fixed  by  law  for  another  session  of  said  court ;  and  the 
court  may  proceed  therein  and  bring  it  to  a  conclusion,  in  the  same 
manner  and  with  the  same  effect  as  if  another  stated  term  of  the 
court  had  not  intervened. 

Parties  may  manage  their  causes  personally. — Sec.  747. 
In  all  the  courts  of  the  United  States  the  parties  may  plead  and 
manage  their  own  causes  personally,  or  by  the  assistance  of  such 
counsel  or  attorneys  at  law  as,  by  the  rules  of  the  said  courts, 
respectively,  are  permitted  to  manage  and  conduct  causes  therein. 

Officers  forbidden  to  practice  as  attorneys. — Sec.  748. 
No  clerk,  assistant  or  deputy  clerk,  of  any  territorial,  district  or 
circuit  court,  or  of  the  Court  of  Claims,  or  the  Supreme  Court  of 
the  United  States,  or  marshal  or  deputy  marshal  of  the  United 
States  within  the  district  for  which  he  is  appointed,  shall  act  as  a 
solicitor,  proctor,  attorney  or  counsel  in  any  cause  depending  in 
either  of  said  courts,  or  in  any  district  for  which  he  is  acting  as 
such  officer. 

Penalty  for  violating  the  preceding  section. — Sec.  749. 
Whosoever  violates  the  preceding  section  shall  be  stricken  from  the 
roll  of  attorneys  by  the  court  upon  complaint,  upon  which  the 
respondent  shall  have  due  notice,  and  be  heard  in  his  defence ;  and 
in  the  case  of  a  marshal  or  deputy  marshal  so  acting,  he  shall  be 
recommended  by  the  court  for  dismissal  from  office. 

Final  record,  in  equity  and  admiralty. — Sec.  750.  In  equity 
and  admiralty  causes,  only  the  process,  pleadings  and  decree,  and 
such  orders  and  memorandums  as  may  be  necessary  to  show  the 
jurisdiction  of  the  court  and  regularity  of  the  proceedings,  shall  be 
entered  upon  the  final  record.     (See  §  698.) 


CHAPTER  XXII. 

PnOVISIONS    OF   THE    STATUTES    RELATING   TO    JURIES. 

§  528.  Jurors,  qualification,  selection,  and  the  constitution  of 
juries. —  The  Revised  Statutes,  with  the  amendments  thereof,  pro- 
vide for  the  qualification  and  selection  of  grand  and  petit  jurors, 
and  the  constitution  of  juries,  as  follows : 

Jurors,  qualifications  and  mode  of  selection. — Sec.  800. 
Jurors  to  serve  in  the  courts  of  the  United  States,  in  each  state 
respectively,  shall  have  the  same  qualifications,  subject  to  the  pro- 
visions hereinafter  contained,  and  be  entitled  to  the  same  exemp- 
tions, as  jurors  of  the  highest  court  of  law  in  such  state  may  have 
and  be  entitled  to  at  the  time  when  such  jurors  for  service  in  the 
courts  of  the  United  States  are  summoned  ;  and  they  shall  be  desig- 
nated by  ballot,  lot  or  otherwise,  according  to  the  mode  of  forming 
such  juries  then  practiced  in  such  state  court,  so  far  as  such  mode 
may  be  practicable  by  the  courts  of  the  United  States  or  the  officers 
thereof.  And  for  this  purpose  the  said  courts  may,  by  rule  or 
order,  conform  the  designation  and  empannelling  of  juries,  in  sub- 
stance, to  the  laws  and  usages  relating  to  jurors  in  the  state  courts, 
from  time  to  time  in  force  in  such  state.     (See  §  1671.) 

The  act  of  March  1,  1875,  ch.  114,  §  4,  18  Stat.  336,  provides: 
That  no  citizen  possessing  all  other  qualifications  which  are  or  may 
be  prescribed  by  law  shall  be  disqualified  for  service  as  grand  or 
petit  juror  in  any  court  of  the  United  States,  or  of  any  state,  on 
account  of  race,  color  or  previous  condition  of  servitude;  and  any 
officer  or  other  person  charged  with  any  duty  in  the  selection  or 
summoning  of  jurors  who  shall  exclude  or  fail  to  summon  any 
citizen  for  the  cause  aforesaid  shall,  on  conviction  thereof,  be 
deemed  guilty  of  a  misdemeanor,  and  be  fined  not  more  than  five 
thousand  dollars.' 

'  The  actof  March  1,  1875,  ch.  114,  The  act  of  June  20,  1879,  ch.  52, 

I  4,  IS  Stat,  at  Large 336,  provides  that  |  2,  21  Stat,  at  Large  43,  amends  this 

no  citizen  possessing  other  qualifica-  section  by  providing  how  jurors  shall 

tions  shall  be  disqualified  as  a  juror  be  drawn,  and  that  persons  shall  not 

in  the  federal  or  state  courts  on  ac-  be  disqualified  on    account  of  race, 

count  of  race,  color  or  previous  con-  color  or  previous  condition  of  servi- 

dition  of  servitude.  tude. 


JURIES. 


449 


The  act  of  June  20,  1879,  ch.  62,  §  2,  21  Stat.  43,  provides : 
That  the  per  diem  pay  of  each  juror,  grand  or  petit,  in  any  court 
of  the  United  States  shall  be  two  dollars ;  and  that  the  last  clause 
of  section  800  of  the  Revised  Statutes  of  the  United  States,  which 
refers  to  the  state  of  Pennsylvania,  and  sections  801,  820  and  821 


The  provisions  of  this  last  act  are 
not  merely  directory  but  mandatory  : 
United  States  v.  Ambrose,  5  G.  L.  B. 
360  -,  3  Fed.  Rep.  283. 

Qualification  of  jurors.  —  The 
word  "  qualification  ''  in  this  section 
refers  to  o;eneral  qualifications,  such 
as  acce  or  citizenship,  or  anything  else 
relating  to  his  personal  standing,  but 
not  to  such  matters  as  would  render  a 
turor  unfit  from  acting  in  some  par- 
jicular  case  :  United  States  v.  Collins, 

1  Woods  499 ;  United  States  v.  Wil- 
liams, 1  Dill.  485. 

The  federal  courts  have  no  discre- 
tion in  reference  to  jurors,  as  the  law 
requires  that  they  shall  have  like 
qualifications  and  be  entitled  to  like 
exemptions  as  jurors  in  the  highest 
courts  of  law  of  the  state,  under  the 
lavFS  of  the  state  :  United  States  v. 
Wilson,  6  McLean  604;  United  States 
V.  Gardner,  5  C.  L.  N.  501. 

The  state  laws  relating  to  chal- 
lenges to  jurors  are  in  force  under 
this  provision  :  United  States  v.  Reed, 

2  Blatch.  435  ;  United  States  v.  Tus- 
ka,  14  Blatch.  5.  But  if  an  act  of 
Congress  expressly  provides  for  per- 
emptory challenges  in  particular  cases, 
no  state  law  can  aflect  this  right : 
United  States  v.  Shackelford,  18  How. 
288.  Nor  does  this  section  affect  the 
right  to  a  peremptory  challenge,  as  it 
is  not  based  upon  the  qualification  of 
the  juror,  or  upon  the  right  to  exemp- 
tion :  United  States  v.  Douglass,  2 
Blatch.  207  ;  United  States  v.  Devlin, 
6  Blatch.  71.  Nor  does  the  section 
refer  to  the  number  of  which  the 
pannel  shall  consist :  United  States  v. 
Insurgents,  2  Dall.  335  ;  United  States 
V.  Collins,  1  Woods  499.  And  the  jur- 
ors should  be  selected  from  the  dis- 
trict at  large  :  United  States  v.  Wood- 
ruflF,  4  McLean  105.  The  right  to 
peremptory  challenges  is  now  regu- 
lated by  statute.  See  Rev.  Stat. 
I  819,  posit. 

29 


Mode  of  drawing  jurors.  —  The 
mode  of  obtainiryj  a  jury  is  now  pro- 
vided for  Ijy  the  act  of  June  20,  1879. 
Under  the  former  provisioi\s  of  the 
statute  relating  thereto  it  was  held 
as  follows :  A  literal  confoi'inity  to 
the  mode  of  selecting  and  drawing 
jurors  prescribed  by  the  laws  of  a 
state  is  not  required,  unless  it  is, 
adopted  by  a  rule  of  the  federal 
court,  and  substantial  conformity  only 
is  necessary  :  United  States  v.  Tall- 
man,  10  Blatch.  21  ;  Alston  v.  Man- 
ning. 1  Chase  460. 

In  these  matters  the  federal  courts 
may  exercise  a  discretion  as  to  the 
best  mode  of  securing  the  main  object 
of  the  law,  which  is  to  secure  jurors 
properly  qualified,  and  selected  and 
empannelled  substantially  according 
to  the  mode  required  to  be  pursued  by 
the  laws  of  the  state  :  United  States 
V.  Collins,  1  Woods  499  ;  United 
States  V.  Wilson,  6  McLean  604  ; 
United  States  v.  Gardner,  5  C.  L.  N. 
501 ;  United  States  v.  Tallman,  10 
Blatch.  21. 

The  jurors  need  not  be  taken  from 
the  lists  made  by  the  state  authorities. 
Conformity  with  the  state  laws  is  re- 
quired in  two  respects  only  :  1.  In 
reference  to  the  qualification  and  ex- 
emption of  jurors.  2.  In  reference  to 
the  mode  of  designating  and  empau- 
nelling  jurors,  ,as  by  ballot,  lot  or 
otherwise;  which  mode  must  conform 
to  that  in  substance  pursued  by  the 
state  courts  :  United  States  v.  Gard- 
ner, 5  C.  L.  N.  501 ;  United  States  v, 
Collins,  1  Woods  499.  But  this  act 
has  no  application  to  the  selecting  of 
jurors  for  the  territorial  courts,  as 
they  are  not  courts  of  the  United 
States  within  the  meaning  of  this 
section :  Clinton  v.  Englebrecht,  13 
Wall.  434.  See  also  American  Ins. 
Co.  V.  Canton,  1  Pet.  546  ;  Benner  v. 
Porter,  9  How.  235. 


150  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

of  the  Revised  Statutes  of  the  United  States  are  hereby  repealed ; 
and  that  all  such  jurors,  grand  and  petit,  including  those  summoned 
during  the  session  of  the  court,  shall  be  publicly  drawn  from  a  box 
containing,  at  the  time  of  each  drawing,  the  names  of  not  less  than 
three  hundred  persons  possessing  the  qualifications  prescribed  in 
section  800  of  the  Revised  Statutes,  which  names  shall  have  been 
placed  therein  by  the  clerk  of  such  court  and  a  commissioner  to  be 
appointed  by  th^  judge  thereof,  which  commissioner  shall  be  a 
citizen  of  good  standing,  residing  in  the  district  in  which  such  court 
is  held,  and  a  well-known  member  of  the  principal  political  party 
in  the  district  in  which  the  court  is  held  opposing  that  to  which  the 
clerk  may  belong,  the  clerk  and  said  commissioner  each  to  place  one 
name  in  said  box  alternately,  without  reference  to  party  aflQliations, 
until  the  whole  number  required  shall  be  placed  therein.  But 
nothing  herein  contained  shall  be  construed  to  prevent  any  judge 
from  ordering  the  names  of  jurors  to  be  drawn  from  the  boxes  used 
by  the  state  authorities  in  selecting  jurors  in  the  highest  courts  of 
the  state;  and  no  person  shall  serve  as  a  petit  juror  more  than  one 
term  in  any  one  year,  and  all  juries  to  serve  in  courts  after  the 
passage  of  this  act  shall  be  drawn  in  conformity  herewith  ;  provided, 
that  no  citizen  possessing  all  other  qualifications  which  are  or  may 
be  prescribed  by  law  shall  be  disqualified  for  service  as  grand  or 
petit  juror  in  any  court  of  the  United  States  on  account  of  race, 
color  or  previous  condition  of  servitude. 

Sec.  801.  Repealed. 

Jurors,  how  apportioned  in  districts. — Sec.  802.  Jurors 
shall  be  returned  from  such  parts  of  the  district,  from  time  to  time, 
as  the  court  shall  direct,  so  as  to  be  most  favorable  to  an  impartial 
trial,  and  so  as  not  to  incur  an  unnecessary  expense  or  unduly  to 
burden  the  citizens  of  any  part  of  the  district  with  such  services. 

Venire;  how  issued  and  served. — Sec.  803.  Writs  of  venire 
facias,  when  directed  by  the  court,  shall  issue  from  the  clerk's  ofBce, 
and  shall  be  served  and  returned  by  the  marshal  in  person,  or  by 
his  deputy  ;  or,  in  case  the  marshal  or  his  deputy  is  not  an  indif- 
ferent person,  or  is  interested  in  the  event  of  the  cause,  by  such  fit 
person  as  may  be  specially  appointed  for  that  purpose  by  the  court, 
who  shall  administer  to  him  an  oath  that  he  will  truly  and  impar- 
tially serve  and  return  the  writ. 

Talesmen  for  petit  juries. — Sec.  804.  When,  from  challenges 
or  otherwise,  there  is  not  a  petit  jury  to  determine  any  civil  or  crim- 


JURIES.  451 

inal  cause,  the  marshal  or  his  deputy  shall,  bj  order  of  the  court  in 
which  such  defect  of  jurors  happens,  return  jurymen  from  the  by- 
standers sufficient  to  complete  the  pannel ;  and  when  the  marshal  or 
his  deputy  is  disqualified  as  aforesaid,  jurors  may  be  so  returned  by 
such  disinterested  person  as  the  court  may  appoint,  and  such  person 
shall  be  sworn,  as  provided  in  the  preceding  section. 

Special  juries  in  circuit  courts. — Sec.  805.  When  special 
juries  are  ordered  in  any  circuit  court,  they  shall  be  returned  by 
the  marshal  in  the  same  manner  and  form  as  is  required  in  such 
cases  by  the  laws  of  the  several  states. 

Jury  in  northern  New  York. — Sec.  806.  No  jury  shall  be 
drawn  for  service  exclusively  in  the  circuit  court  for  the  northern 
district  of  New  York  at  the  adjourned  terms  thereof  required  by 
law  to  be  held  at  Albany  and  Utica,  but  the  jury  drawn  to  serve  in 
the  district  court  held  at  the  same  times  and  places  with  said  ad- 
journed terms  shall  be  used  for  the  trial  of  issues  of  fact  arising  in 
civil  causes  in  said  circuit  court,  and  the  verdicts  of  said  jury,  and  all 
proceedings  upon  the  trial  of  said  issues,  shall  be  of  the  same  effect 
as  if  the  said  jury  had  been  drawn  to  serve  in  the  said  circuit  court. 

Petit  jury  in  Vermont. — Sec.  807.  The  clerk  of  the  district 
court  for  Vermont  shall  not  cause  a  petit  jury  to  be  summoned  or 
returned  to  any  session  in  which  there  shall  appear  to  be  no  issue 
proper  for  trial  by  jury,  unless  by  special  order  of  the  judge. 

Number  of  grand  jurors  ;  completing  the  jury. — Sec.  808. 
Every  grand  jury  empannelled  before  any  district  or  circuit  court 
shall  consist  of  not  less  than  sixteen  nor  more  than  twenty-three 
persons.  If  of  the  persons  summoned  less  than  sixteen  attend,  they 
shall  be  placed  on  the  grand  jury,  and  the  court  shall  order  the 
marshal  to  summon,  either  immediately  or  for  a  day  fixed,  from  the 
body  of  the  district,  and  not  from  the  bystanders,  a  sufficient  num- 
ber of  persons  to  complete  the  grand  jury.  And  whenever  a  chal- 
lenge to  a  grand  juror  is  allowed,  and  there  are  not  in  attendance 
other  jurors  sufficient  to  complete  the  grand  jury,  the  court  shall 
make  a  like  order  to  the  marshal  to  summon  a  sufficient  number  of 
persons  for  that  purpose.^ 

^  Notwithstanding  the  provision  of    constituted  therefrom  :  United  States 
this  section,  the  federal  courts  have     v,  Tuska,  14  Blatch.  5. 
power  to  determine  what  number  of        This  section  applies  only  to  the  dis- 
persons  shall  be  summoned  in  order     trict  and  circuit  courts,  and  does  not 
that  a  grand  jury  may  be  selected  or     embrace  territorial  courts:  Reynolds 

V.  United  States,  98  U.  S.  145, 


452         federal  pleading,  practice  and  procedure. 

Appointment  and  powers  of  the  foreman  of  grand  jury. — 
Sec.  809.  From  the  persons  summoned  and  accepted  as  grand 
jurors,  the  court  shall  appoint  the  foreman,  who  shall  have  power 
to  administer  oaths  and  aflSrmations  to  witnesses  appearing  before 
the  grand  jury. 

Grand  juries;  when  summoned. — Sec.  810.  No  grand  jury 
shall  be  summoned  to  attend  any  circuit  or  district  court  unless  one 
of  the  judges  of  such  circuit  court,  or  the  judge  of  such  district,  in 
his  OAvn  discretion,  or  upon  a  notification  by  the  district  attorney 
that  such  jury  will  be  needed,  orders  a  venire  to  issue  therefor. 
And  either  of  the  said  courts  may  in  term  order  a  grand  jury  to  be 
summoned  at  such  time,  and  to  serve  such  time  as  it  may  direct, 
whenever,  in  its  judgment,  it  maybe  proper  to  do  so.  But  nothing 
herein  shall  operate  to  extend  beyond  the  time  permitted  by  law 
the  imprisonment  before  indictment  found  of  a  person  accused  of  a 
crime  or  offence,  or  the  time  during  which  a  person  so  accused  may 
be  held  under  recognizance  before  indictment  found.^ 

Discharge  of  grand  juries. — Sec.  811.  The  circuit  and  dis- 
trict courts,  the  district  courts  of  the  territories,  and  the  supreme 
court  of  the  District  of  Columbia,  may  discharge  their  grand  juries 
whenever  they  deem  a  continuance  of  the  sessions  of  such  juries 
unnecessary. 

Jurors  not  to  be  summoned  oftener  than  once  in  two 
YEARS. — Sec.  812.  No  person  shall  be  summoned  as  a  juror  in  any 
circuit  or  district  court  more  than  once  in  two  years,  and  it  shall  be 
suflScient  cause  of  challenge  to  any  juror  called  to  be  sworn  in  any 
cause  that  he  has  been  summoned  and  attended  said  court  as  a 
juror  at  any  term  of  said  court  held  within  two  years  prior  to  the 
time  of  such  challenge. 

Grand  jurors  may  act  in  cases  cognizable  in  cijicuit 
courts. — Sec.  813.  The  grand  jury  empannelled  and  sworn  in  any 
district  court  may  take  cognizance  of  all  crimes  and  offences  within 
the  jurisdiction  of  the  circuit  court  for  said  district  as  well  as  of 
said  district  court. 

^  It  is  not  necessary  that  the  order  duty  of  the   clerk  to  issue  a  venire, 

contemplated   in   this  section   should  under  the  provisions  of  this  section, 

be  put  on  file  by  the  judge  himself,  upon  the  order  of  the  judge,  but  an 

but  it  may  be  entered  by  the  clerk  omission  of  such  order  is  a  mere  tech- 

with  the  same  effect,  as  in  contempla-  nical  omission,  and  cannot  constitute 

tion  of  law,  what  is  done  by  the  clerk  the  basis  of  an  application,  addressed 

under  the  authority  of  the  judge  is  only  to  the  discretion  of  the  court: 

done  by  the  judge  himself.     It  is  the  United  States  v.  Reed,  2  Blatch,  435. 


JURIES.  453 

Jurors  in.avestern  district  of  Arkansas. — See.  814.  In  the 
western  district  of  Arkansas  such  number  of  jurors  shall  be  sum- 
moned at  every  term  of  the  district  court  thereof,  to  be  held  at 
Helena,  as  may  have  been  ordered  at  a  previous  term  or  by  the 
district  judge  in  vacation.  And  a  grand  jury  may  be  summoned 
to  attend  any  such  term  -when  ordered  by  the  court  or  by  the  judge 
in  vacation.  In  case  of  a  deficiency  of  jurors,  talesmen  may  be 
summoned  by  order  of  the  court. 

Jurors  in  Kentucky  and  Indiana. — Sec.  815.  In  the  several 
districts  of  Kentucky  and  Indiana,  such  number  of  jurors  shall  be 
summoned  by  the  marshal  at  every  term  of  the  circuit  and  district 
courts  respectively  as  may  have  been  ordered  of  record  at  the  pre- 
vious term;  and  in  case  there  is  not  a  sufficient  number  of  jurors 
in  attendance  at  any  time,  the  court  may  order  such  number  to  be 
summoned  as,  in  its  judgment,  may  be  necessary  to  transact  the 
business  of  the  court.  And  a  grand  jury  may  be  summoned  to 
attend  every  term  of  the  circuit  or  district  court  by  order  of  the 
court.  The  marshal  may  summon  juries  and  talesmen  in  case  of  a 
deficiency,  pursuant  to  an  order  of  the  court  made  during  the  term, 
and  they  shall  serve  for  such  time  as  the  court  may  direct. 

Juries  at  special  terms  in  North  Carolina. — See.  816,  The 
circuit  and  district  courts  for  either  of  the  districts  of  North  Carolina 
may  order  a  grand  or  petit  jury,  or  both,  to  attend  any  special  term 
thereof,  by  an  order  to  be  entered  of  record  thirty  days  before  the 
day  on  which  such  special  term  is  appointed  to  convene. 

Juries  for  western  district  of  South  Carolina. — See.  817. 
The  grand  and  petit  jurors  for  the  district  court  sitting  in  the 
western  district  of  South  Carolina  shall  be  drawn  from  the  inhabit- 
ants of  said  district  who  are  liable,  according  to  the  laws  of  said 
state,  to  do  jury  duty  in  the  courts  thereof;  and  all  jurors  shall  be 
drawn  during  the  sitting  of  the  court  for  the  next  succeeding  term. 

Charge  to  grand  juries  in  Vermont. — Sec.  818.  In  the  dis- 
trict of  Vermont  it  shall  be  the  duty  of  the  circuit  court,  at  its 
regular  sessions,  to  give  in  charge  to  the  grand  jury  all  crimes, 
offences  and  misdemeanors  which  are  cognizable  as  well  in  the 
district  court  thereof  as  in  the  said  circuit  court. 

The  act  of  April  20,  1880,  ch.  58,  §  2,  21  Stat.  76,  provides : 
Whenever  the  terms  of  the  said  circuit  and  district  courts  (for  the 
district  of  Colorado)  shall  be  held  at  the  same  time  and  place,  grand 


451:  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

and  petit  jurors  summoned  to  attend  in  either  of  sard  courts  may 
serve  in  the  other  of  said  courts,  and  but  one  grand  or  petit  jury- 
shall  be  summoned  to  attend  on  said  courts  at  one  and  the  same 
time ;  but  this  provision  shall  not  prevent  either  of  said  courts  from 
procuring  the  attendance  of  several  pannels  of  jurors  successively, 
as  the  business  of  the  courts  may  require. 

The  act  of  January  29,  1880,  ch.  17,  §  8,  21  Stat.  63,  provides : 
All  grand  and  petit  jurors  summoned  for  service  in  each  division 
(for  the  southern  district  of  Georgia)  shall  be  residents  of  such 
division.  All  mesne  and  final  process,  subject  to  the  provisions 
hereinbefore  contained,  issued  in  either  of  said  divisions  may  be 
served  and  executed  in  either  or  both  of  the  divisions. 

The  act  of  June  8,  1878,  ch.  169,  §  6,  20  Stat.  102,  provides : 
All  grand  and  petit  jurors  summoned  for  service  in  each  division 
(of  the  northern  district  of  Ohio)  shall  be  residents  of  such  division. 
All  mesne  and  final  process,  subject  to  the  provisions  hereinbefore 
contained,  issued  in  either  of  said  divisions,  may  be  served  and 
executed  in  either  or  both  of  the  divisions. 

The  act  of  February  4,  1880,  ch.  18,  §  7,  21  Stat.  64,  provides  : 
All  grand  and  petit  jurors  summoned  for  service  in  each  division 
(for  the  southern  district  of  Ohio)  shall  be  residents  of  such  division. 
All  mesne  and  final  process  subject  to  the  provisions  hereinbefore 
contained,  issued  in  either  of  said  divisions,  may  be  served  and  ex- 
ecuted in  either  or  both  of  the  divisions. 

The  act  of  June  11,  1880,  ch.  203,  §  7,  21  Stat.  176,  provides : 
All  grand  and  petit  jurors  summoned  for  service  in  each  division 
(for  the  eastern  district  of  Tennessee)  shall  be  residents  of  such 
division.  All  mesne  and  final  process  subject  to  the  provisions 
hereinbefore  contained,  issued  in  either  of  said  divisions,  may  be 
served  and  executed  in  either  or  both  of  the  divisions. 

Challenges. — Sec.  819.  When  the  offence  charged  is  treason  or 
a  capital  offence,  the  defendant  shall  be  entitled  to  twenty  and  the 
United  States  to  five  peremptory  challenges.  On  the  trial  of  any 
other  felony  the  defendant  shall  be  entitled  to  ten  and  the  United 
States  to  three  peremptory  challenges ;  and  in  all  other  cases,  civil 
and  criminal,  each  party  shall  be  entitled  to  three  peremptory  chal- 
lenges ;  and  in  all  cases  where  there  are  several  defendants  or 
several  plaintifis,  the  parties  on  each  side  shall  be  deemed  a  single 
party  for  the  purposes  of  all  challenges  under  this  section.     All 


JURIES. 


455 


challenges,  whether  to  the  array  or  pannel  or  to  individual  jurors  for 
cause  or  favor,  shall  be  tried  by  the  court  without  the  aid  of  triers.^ 
(See  §§  1031,  4303.) 

Section  820  repealed. — Sec.  820.  Repealed  by  act  of  June  20, 
1879,  ch.  52,  §  2,  21  Stat.  43. 

Section  821  repealed. — Sec.  821.  Repealed  by  act  of  June  20, 
1879,  ch.  52,  §  2,  21  Stat.  43. 

Grand  and  petit  jurors  in  certain  cases. — Sec.  822.  No 
person  shall  be  a  grand  or  petit  juror  in  any  court  of  the  United 
States  upon  any  inquiry,  hearing  or  trial  of  any  suit,  proceeding  or 
prosecution  based  upon  or  arising  under  the  provisions  of  title 
"  Civil  Rights  "  and  of  title  "  Crimes,"  for  enforcing  the  provisions 
of  the  fourteenth  amendment  to  the  Constitution,  who  is,  in  the 
judgment  of  the  court,  in  complicity  with  any  combination  or  con- 
spiracy in  said  titles  set  forth;  and  every  grand  and  petit  juror 
shall,  before  entering  upon  any  such  inquiry,  hearing  or  trial,  take 
and  subscribe  an  oath,  in  open  court,  that  he  has  never  directly  or 
indirectly  counselled,  advised  or  voluntarily  aided  any  such  combi- 
nation or  conspiracy. 


^  The  words  "  any  other  felony"  in 
this  section  designate  other  offences 
than  those  that  are  capital,  for  they 
are  otherwise  specially  provided  for 
by  the  provisions  of  this  section : 
United  States  v.  Coppersmith,  22  A. 
L.  J.  250;  4  Fed.  Kep.  198.  If  a 
criminal  case  is  removed  from  a  state 
court,  the  number  of  peremptory 
challenges  is  regulated  by  this  section 
and  not  by  the  state  law  :  Georgia  v. 
O'Grady,  3  Woods  496.  In  cases 
other  than  capital  ones  this  section 


gives  the  defendant  ten  challenges  in 
the  following  cases : 

1.  Where  the  offence  is  declared  by 
statute  expressly  or  impliedly  to  be  a 
felony. 

2.  Where  Congress  does  not  define 
an  ofi"ence,  but  simply  punishes  it  by 
its  common  law  name,  and  at  com- 
mon law  it  is  a  felony. 

3.  Where  Congress  adopts  a  state 
law  providing  what  is  an  off"ence,  and 
under  such  law  it  is  a  felony  :  United 
States  V.  Coppersmith,  22  A.  L.  J. 
250;  4  Fed.  Rep.  198. 


CHAPTER  XXIII. 

FEES    AND    COSTS. 

§  524.  Provisions  of  the  statutes  relating  to  fees  of  officers. — 
The  Revised  Statutes  provide  for  the  fees  of  federal  judicial  officers, 
attorneys  and  witnesses,  and  for  costs,  as  follows: 

Fees  taxed  and  allowed. — Sec.  823.  The  following  and  no 
other  compensation  shall  be  taxed  and  allowed  to  attorneys,  soli- 
citors and  proctors  in  the  courts  of  the  United  States,  to  district 
attorneys,  clerks' of  the  circuit  and  district  courts,  marshals,  com- 
missioners, witnesses,  jurors  and  printers  in  the  several  states  and 
territories,  except  in  cages  otherwise  expressly  provided  by  law. 
But  nothing  herein  shall  be  construed  to  prohibit  attorneys,  so- 
licitors and  proctors  from  charging  to  and  receiving  from  their 
clients,  other  than  the  government,  such  reasonable  compensation 
for  their  services,  in  addition  to  the  taxable  costs,  as  may  be  in 
accordance  with  general  usage  in  their  respective  states,  or  may  be 
agreed  upon  between  the  parties.^ 

Fees  of  attorneys,  solicitors  and  proctors.— ^S'^c.  824. 
On  a  trial  before  a  jury  in  civil  or  criminal  causes,  or  before  refer- 
ees, or  on  a  final  hearing  in  equity  or  admiralty,  a  docket  fee  of 
twenty  dollars;   'provided,  that  in   cases  of  admiralty  and  maritime 

1  Docket  fees. — This  provision  was  Dedekam  v.  Vose,  3  Rlatch.  153  ;  Ly- 

designed  to  prevent  a  practice  in  the  ell  v.  Miller,  6  McLean  422;  United 

federal   courts,   prevailing    for   some  States  w.  Package,  16  Law  Rep.  284 ; 

time,  of  allowing  fees  in"  the  discre-  United  States  v.  Smith,  N.  &  M.  184. 
tion  of  the  courts.     It  was  intended         Costs   for   printing  testimony  will 

to  remedy  a  great  evil,  and  is  vigor-  not  be  allowed,  as  no  provision  is  made 

ously  enforced  to  carry  out  the  inten-  therefor :  Spauldingi;.  Tucker,  2  Saw. 

tion  :    Simpcion  v.  Brooks,  3  Blatch.  50 ;   4  Fish  633  ;  Hussey  v.  Bradley, 

456.  5  Blatch.  210;    Troy  I.  &  N.  Fac.  y. 

Every  item  of  fees  of  officers  of  the  Corning,  7  Blatch.  16. 
court  must  be  specified  in  the  fee  bill.         But  the  statute  does  not   prohibit 

and  the  court  cannot  go  outside  the  the  allowance  of  such  disbursements 

provision  to  make  any  allowance  of  as  are  made  necessary  by  the  order  of 

costs  on  any  considerations  of  justice,  the  court :  Dennis  v.  Eddy,  12  Blatch. 

And  the  province  of  the  taxing  oflScer  195;    Brooks  v.  Byara,  2  Story  553, 

is    limited    to   a   comparison    of   the  And  if  a  rule  of  court  requires  briefs 

charges  made  with  the  provisions  of  to  be  printed,  the  expense  thereof  may 

the  statute;  and  when  the  charge  is  be  taxed:    Neff  v.  Pennoyer,  3  Saw. 

found   not  to  be  within   the  enumer-  335. 
ated  fees  of  the  statute,  it  is  rejected  : 


FEES   AND    COSTS.  457 

jurisdiction,  where  the  libelhint  recovers  less  than  fifty  dollars,  the 
docket  fee  of  his  proctor  shall  be  but  ten  dollars. 

In  cases  at  law,  when  judgment  is  rendered  without  a  jury,  ten 
dollars. 

In  cases  at  law,  Avhen  the  cause  is  discontinued,  five  dollars. 

For  scire  facias  and  other  proceedings  on  recognizances,  five 
dollars. 

For  each  deposition  taken  and  admitted  in  evidence  in  a  cause, 
two  dollars  and  fifty  cents. 

For  services  rendered  in  cases  removed  from  a  district  to  a 
circuit  court  by  writ  of  error  or  appeal,  five  dollars. 

For  examination  by  a  district  attorney,  before  a  judge  or  com- 
missioner, of  persons  charged  with  crime,  five  dollars  a  day  for  the 
time  necessarily  employed. 

For  each  day  of  his  necessary  attendance  in  a  court  of  the 
United  States  on  the  business  of  the  United  States,  when  the 
court  is  held  at  the  place  of  his  abode,  five  dollars ;  and  for  bis 
attendance  when  the  court  is  held  elsewhere,  five  dollars  for  each 
day  of  the  term. 

For  travelling  from  the  place  of  his  abode  to  the  place  of  hold- 
ing any  court  of  the  United  States  in  his  district,  or  to  the  place 
of  any  examination  before  a  judge  or  commissioner,  of  a  person 
charged  with  crime,  ten  cents  a  mile  for  going  and  ten  cents  a  mile 
for  returning. 

When  an  indictment  for  crime  is  tried  before  a  jury  and  a  con- 
viction is  had,  the  district  attorney  may  be  allowed,  in  addition  to 
the  attorney's  fees  herein  provided,  a  counsel  fee,  in  proportion  to 
the  importance  and  difiiculty  of  the  cause,  not  exceeding  thirty 
dollars.^ 

^  Nothing  can  be  taxed  as  incident  7  Blatch.    16  ;    Dedekam  v.  Vose,  3 

to  the  judgment  against  the  failing  Bhitch.  153;  Goodyear  v.  Osgood,  13 

party  for  the   services  of  attorneys,  0.  G.  325. 

solicitors  or  proctors,  except  the  costs  If  a  cause  has  been  removed  from 

and  fees  enumerated  in  the  statute  :  a  state  court,  no  more  fees  can  be  al- 

The   Baltimore,    8    Wall.    377 ;    The  lowed   than    those    provided    by    the 

Liverpool    Packet,    2    Sprague    37  ;  statute  :  Clare  v.  National  Cit.  Bank, 

Derry  v.  Hersey,  21  Law  Rep.  473  ;  14  Blatch.  445. 

Cauter  v.  American  Ins.  Co.,  3  Pet.  In  cases  at  law,  if  there  is  a  waiver 

307.  of  a  jury   and   a   trial   to  the   court, 

Twenty  dollars  is  the  highest  fee  only  ten  dollars  can  be  taxed  as  costs. 

that  can  be  allowed  to  an  attorney  in  But  if  a  libellant    discontinues    his 

a  cause,  and  it  can   be  allowed  but  suit  after  a  witness  has  been  sworn, 

once  :  Troy  I.  &  N.  Fac.  c.  Corning,  a  docket  fee  of  twenty  dollars  will  be 


458 


FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 


Fees  ix  revenue  and  other  ca.ses. — Sec.  825.  There  shall  be 
taxed  and  paid  to  every  district  attorney  two  per  centum  upon  all 
moneys  collected  or  realized  in  any  suit  or  proceeding  arising  under 
the  revenue  laws,  and  conducted  by  him,  in  which  the  United  States 
is  a  party,  which  shall  be  in  lieu  of  all  costs  and  fees  in  such  pro- 
ceeding.^ 

Fees  of  district  attorney  for  defence  of  revenue  of- 
ficers.— Sec.  827.  When  a  district  attorney  appears  by  direction 
of  the  Secretary  or  Solicitor  of  the  Treasury,  on  behalf  of  any 
oflScer  of  the  revenue  in  any  suit  against  such  oflBcer,  for  any  act 
done  by  him,  or  for  the  recovery  of  any  money  received  by  him  and 
paid  into  the  treasury  in  the  performance  of  his  official  duty,  he 
shall  receive  such  compensation  as  may  be  certified  to  be  proper  by 
the  court  in  which  the  suit  is  brought,  and  approved  by  the  Secre- 
tary of  the  Treasury.     (See  §  4046.) 

Clerk's  fees. — Sec.  828.  For  issuing  and  entering  every  pro- 
cess, commission,  summons,  capias,  execution,  warrant,  attachment, 
or  other  writ  except  a  writ  of  venire,  or  a  summons  or  subpoena 
for  a  witness,  one  dollar. 

For  issuing  a  Avrit  of  summons  or  subpoena,  twenty-five  cents. 


allowed  :  Jones  v.  Schell,  8  Blatch. 
79;  The  Bay  City,  3  Fed.  Rep.  47. 
So  in  case  a  cause  is  dismissed  be- 
cause an  appellant  fjave  no  security 
for  costs,  the  fee  of  twenty  dollars 
will  be  allowed  :  Hayford  v.  Griffith, 
3  Blatch.  79. 

The  statute  provides  a  fee  for  each 
deposition  of  two  dollars  and  fifty 
cents.  This  does  not  embrace  affi- 
davits. A  deposition  is  evidence 
given  by  a  witness  under  interroga- 
tories, oral  or  written,  and  the  evi- 
dence is  usually  written  down  by  an 
official  person,  while  an  affidavit  is  a 
voluntary  act  on  the  part  of  the  per- 
son making  the  oath,  and  may  be, 
and  generally  is,  taken  without  the 
cognizance  of  the  person  against 
whom  it  is  to  be  used.  It  is  ex  parte 
and  not  included  in  the  statute  under 
consideration,  providing  for  a  fee  for 
depositions:  Stimpson  v.  Brooks,  3 
Blatch.  456  ;  Beckwith  v.  Easton,  4 
Ben.  357. 

^  This  section  has  been  held  to  ap- 
ply to  cases  arising  under  the  internal 
revenue  laws,  as  well  as  to  those 
arising   under    the  common  revenue 


laws  :  United  States  v..  500  Barrels, 
2  Bond  7. 

The  "  two  per  centum  "  is  in  the 
nature  of  a  contingent  fee  dependent 
upon  the  collection  of  the  money,  and 
if  the  contingency  does  not  occur,  the 
right  to  the  per  centum  does  not  at- 
tach :  The  Pacific,  Deady  192.  The 
per  centum  cannot  be  taxed  in  the 
judgment  against  the  defendant,  as 
the  district  attorney  is  only  entitled 
to  it  upon  "  moneys  collected  or  re- 
alized :"  King  v.  United  States,  99 
U.  S.  229. 

Although  a  seizure  in  one  district 
leads  to  a  discovery  of  fraud  in  an- 
other district,  and  a  compromise  of 
the  whole  matter,  the  district  attorney 
is  not  entitled  to  the  per  centum  on 
the  whole  amount  received  on  the 
compromise,  but  only  on  the  amount 
received  on  the  compromise  of  the 
seizure  in  his  own  district :  United 
States  V.  500  Barrels,  2  Bond  7. 

If  the  district  attorney  is  unsuc- 
cessful, still  he  is  entitled  to  his  or- 
dinary statute  fee  :  King  v.  United 
States,  99  U.  S.  229. 


FEES    AND    COSTS.  459 

For  filing  and  entering  every  declaration,  plea  or  other  paper, 
ten  cents. 

For  administering  an  oath  or  affirmation,  except  to  a  juror,  ten 
cents. 

For  taking  an  acknowledgment,  twenty-five  cents. 

For  taking  and  certifying  depositions  to  file,  twenty  cents  for 
each  folio  of  one  hundred  words. 

For  a  copy  of  such  depositions  furnished  to  a  party  on  request, 
ten  cents  a  folio. 

For  entering  any  return,  rule,  order,  continuance,  judgment, 
decree  or  recognizance,  or  drawing  any  bond,  or  making  any 
record,  certificate,  return  or  report,  for  each  folio,  fifteen  cents. 

For  a  copy  of  any  entry  or  record,  or  of  any  paper  on  file,  for 
each  folio,  ten  cents. 

For  milking  dockets  and  indexes,  issuing  venire,  taxing  costs 
and  all  other  services,  on  the  trial  or  argument  of  a  cause  where 
issue  is  joined  and  testimony  given,  three  dollars. 

For  making  dockets  and  indexes,  taxing  costs  and  all  other 
services,  in  a  cause  where  issue  is  joined  but  no  testimony  is 
given,  two  dollars. 

For  making  dockets  and  indexes,  taxing  costs  and  other  ser- 
vices, in  a  cause  which  is  dismissed  or  discontinued,  or  where  judg- 
ment or  decree  is  made  or  rendered  without  issue,  one  dollar. 

For  making  dockets  "and  taxing  costs,  in  cases  removed  by  writ 
of  error  or  appeal,  one  dollar. 

For  affixing  the  seal  of  the  court  to  any  instrument,  when  re- 
quired, twenty  cents. 

For  every  search  for  any  particular  mortgage,  judgment  or  other 
lien,  fifteen  cents. 

For  searching  the  records  of  the  court  for  judgments,  decrees 
or  other  instruments  constituting  a  general  lien  on  real  estate,  and 
certifying  the  result  of  such  search,  fifteen  cents  for  each  person 
against  whom  such  search  is  required  to  be  made. 

For  receiving,  keeping  and  paying  out  money,  in  pursuance  of 
any  statute  or  order  of  court,  one  per  centum  on  the  amount  so 
received,  kept  and  paid. 

For  travelling  from  the  office  of  the  clerk,  where  he  is  required 
to  reside,  to  the  place  of  holding  any  court  required  by  law  to  be 
held,  five  cents  a  mile  for  going  and  five  cents  for  returning,  and 


460  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

five  dollars  a  day  for  his  attendance  on  the  court  while  actually  in 
session. 

All  books  in  the  oflfices  of  the  clerks  of  the  circuit  and  district 
courts,  containing  the  docket  or  minute  of  the  judgments  or  decrees 
thereof,  shall,  during  office  hours,  be  open  to  the  inspection  of  any 
person  desiring  to  examine  the  same,  without  any  fees  or  charge 
therefor.^ 

Marshal's  fees. — Sec.  829.  For  service  of  any  warrant,  at- 
tachment, summons,  capias  or  other  writ,  except  execution,  venire 
or  a  summons  or  subpoena  for  a  witness,  two  dollars  for  each  person 
on  whom  service  is  made. 

For  the  keeping  of  personal  property  attached  on  mesne  process 
such  compensation  as  the  court,  on  petition  setting  forth  the  facts 
under  oath,  may  allow. 

For  serving  venires  and  summoning  every  twelve  men  as  grand 
or  petit  jurors,  four  dollars,  or  thirty-three  and  one-third  cents 
each.  In  states  where,  by  the  laws  thereof,  jurors  are  drawn  by 
lot,  by  constables  or  other  officers  of  corporate  places,  the  marshal 
shall  receive  for  each  jury  two  dollars  for  the  use  of  the  officers 
employed  in  drawing  and  summoning  the  jurors  and  returning  each 
venire,  and  two  dollars  for  his  own  services  in  distributing  the 
venires.  But  the  fees  for  distributing  and  serving  venires,  drawing 
and  summoning  jurors  by  township  officers,  including  the  mileage 
chargeable  by  the  marshal  for  each  service,  shall  not  at  any  court 
exceed  fifty  dollars. 

For  holding  a  court  of  inquiry  or  other  proceedings  before  a  jury, 
including  the  summoning  of  a  jury,  five  dollars. 

For  serving  a  writ  of  subpoena  on  a  witness,  fifty  cents;   and  no 

^  The  clerk  may  charge  a  fee  where  that  it  be   paid,   under  an  order  or 

the  cause  is  continued  on  account  of  agreement,  to  the  person  who  is  en- 

the  absence  of  a  defendant :  Ex  parte  titled  to  receive  it.    buch  a  case  would 

Lee,  4  Ct.  CI.  197  ;  and  he  is  entitled  not  be  within   the   provisions  of  the 

to  a  commission  upon  the  proceeds  of  statute  :    In  re  Goodrich,  4  Dill.  230  ; 

property  sold  upon  an  interlocutory  Upton  ?;.  Triblecock,  4  Dill.  232.     But 

order  and  paid  into  court  by  the  mar-  if  a  marshal  pays  the  proceeds  of  a 

shal :    The  Avery,  2  Gall.   308 ;  Ex  sale    on    execution    into    court,    the 

parte  Prescott,  2  Gall.   146.      But   a  clerk  is  entitled  to  a  commission  for 

fund,  although  the  subject  of  a  decree  the   money    so  received  :    Kitchen   v. 

of  the  court,  does  not  entitle  the  clerk  Woodfin,  i   Hughes  340  ;   In  re  Good- 

to  a  commission  thereon,  unless  it  is  rich,  4  Dill.  230  ;  The  Avery,  2  Gall, 

paid  into  court:     Ex  parte   Plitt,  2  308;  Ex  parte  Prescott,  2  Gall.   146. 

Wall,  Jr.  453.     To  entitle  the  clerk  As  to  the  right  to  inspect  records,  see 

to  commissions   on   money  received,  In  re  McLean,  9  Cent.  L.  J.  425. 
kept  and  paid  out,  it  is  not  sufficient 


FEES   AND    COSTS.  461 

further  compensation  shall  be  allowed  for  any  copy,  summons  or 
notice  for  a  witness. 

For  serving  a  writ  of  possession,  partition,  execution  or  any  final 
process,  the  same  mileage  as  is  allowed  for  the  service  of  any  other 
writ,  and  for  making  the  service,  seizing  or  levying  on  property, 
advertising  and  disposing  of  the  same  by  sale,  set-off  or  otherwise 
according  to  law  receiving  and  paying  over  the  money,  the  same 
fees  and  poundage  as  are  or  shall  be  allowed  for  similar  services  to 
the  sheriffs  of  the  states,  respectively,  in  which  the  service  is 
rendered. 

For  each  bail-bond,  fifty  cents. 

For  summoning  appraisers,  fifty  cents  each. 

For  executing  a  deed  prepared  by  a  party  or  his  attorney,  one 
dollar. 

For  drawing  and  executing  a  deed,  five  dollars. 

For  copies  of  writs  or  papers  furnished  at  the  request  of  any 
party,  ten  cents  a  folio. 

For  every  proclamation  in  admiralty,  thirty  cents. 

For  serving  an  attachment  in  rem  or  a  libel  in  admiralty,  two 
dollars. 

For  the  necessary  expenses  of  keeping  boats,  vessels  or  other 
property  attached  or  libelled  in  admiralty,  not  exceeding  two  dollars 
and  fifty  cents  a  day. 

When  the  debt  or  claim  in  admiralty  is  settled  by  the  parties 
without  a  sale  of  the  property,  the  marshal  shall  be  entitled  to  a 
commission  of  one  per  centum  on  the  first  five  hundred  dollars  of 
the  claim  or  decree,  and  one-half  of  one  per  centum  on  the  excess 
of  any  sura  thereof  over  five  hundred  dollars  ;  provided,  that  when 
the  value  of  the  property  is  less  than  the  claim,  such  commission 
shall  be  allowed  only  on  the  appraised  value  thereof. 

For  sale  of  vessels  or  other  property  under  process  in  admiralty, 
or  under  the  order  of  a  court  of  admiralty,  and  for  receiving  and 
paying  over  the  money,  two  and  one-half  per  centum  on  any  sum 
under  five  hundred  dollars,  and  one  and  one-quarter  per  centum  on 
the  excess  of  any  sum  over  five  hundred  dollars. 

For  disbursing  money  to  jurors  and  witnesses,  and  for  other  ex- 
penses, two  per  centum. 

For  expenses  while  employed  in   endeavoring  to   arrest,  under 


462  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

process,  any  person  charged  "with  or  convicted  of  a  crime,  the  sum 
actually  expended,  not  to  exceed  two  dollars  a  day,  in  addition  to 
his  compensation  for  service  and  travel. 

For  every  commitment  or  discharge  of  a  prisoner,  fifty  cents. 

For  transporting  criminals,  ten  cents  a  mile  for  himself  and  for 
each  prisoner  and  necessary  guard ;  except  in  the  case  provided  for 
in  the  next  paragraph. 

For  transporting  criminals  convicted  of  a  crime  in  any  district 
or  territory  where  there  is  no  penitentiary  available  for  the  con- 
finement of  convicts  of  the  United  States,  to  a  prison  in  another 
district  or  territory  designated  by  the  Attorney-General,  the 
reasonable  actual  expense  of  transportation  of  the  criminals, 
the  marshal  and  the  guards,  and  the  necessary  subsistence  and 
hire. 

For  attending  the  circuit  and  district  courts,  when  both  are  in 
session,  or  either  of  them  when  only  one  is  in  session,  and  for 
bringing  in  and  committing  prisoners  and  witnesses  during  the 
term,  five  dollars  a  day. 

For  attending  examinations  before  a  commissioner,  and  bringing 
in,  guarding  and  returning  prisoners  charged  with  crime,  and  wit- 
nesses, two  dollars  a  day ;  and  for  each  deputy  not  exceeding  two, 
necessarily  attending,  two  dollars  a  day. 

For  travelling  from  his  residence  to  the  place  of  holding  court, 
to  attend  a  term  thereof,  ten  cents  a  mile  for  going  only. 

For  travel,  in  going  only,  to  serve  any  process,  warrant,  attach- 
ment or  other  writ,  including  writs  of  subpoena  in  civil  or  criminal 
cases,  six  cents  a  mile,  to  be  computed  from  the  place  where  the 
process  is  returned  to  the  place  of  service,  or,  when  more  than  one 
person  is  served  therewith,  to  the  place  of  service  which  is  most 
remote,  adding  thereto  the  extra  travel  which  is  necessary  to  serve 
it  on  the  others.  But  when  more  than  two  writs  of  any  kind  re- 
quired to  be  served  in  behalf  of  the  same  party  on  the  same  person 
might  be  served  at  the  same  time,  the  marshal  shall  be  entitled  to 
compensation  for  travel  on  only  two  of  such  writs ;  and  to  save  un- 
necessar}^  expense,  it  shall  be  the  duty  of  the  clerk  to  insert  the 
names  of  as  many  witnesses  in  a  cause  in  such  subpoena  as  conve- 
nience in  serving  the  same  will  permit. 

In  all  cases  where  mileage  is  allowed  to  the  marshal  he  may  elect 


FEES   AND    COSTS. 


463 


to  receive  tlie  same  or  his  actual  travelling  expenses,  to  be  proved 
on  his  oath,  to  the  satisfaction  of  the  court.^     (See  §  1660.) 

Marshal's  fees  in  particular  cases. — Sec.  830.  There  shall 
be  paid  to  the  marshal  his  fees  for  services  rendered  for  the  United 
States,  for  summoning  jurors  and  witnesses  in  behalf  of  the  United 
States,  and  in  behalf  of  any  prisoner  to  be  tried  for  a  capital  offence, 
for  the  maintenance  of  prisoners  of  the  United  States  confined  in 
jail  for  any  criminal  offence  ;  also  for  his  reasonable  actual  expense 
for  the  transportation  of  criminals,  and  of  the  marshal  and  guards, 
to  prisons  designated  by  the  Attorney-General,  and  for  hire  and 
subsistence  in  that  behalf,  as  hereinbefore  provided ;  also  his  fees 
for  the  commitment  or  discharge  of  prisoners ;  his  expenses  neces- 
sarily incurred  for  fuel,  lights  and  other  contingencies  that  may 
accrue  in  holding  the  courts  within  his  district,  and  providing  the 
books  necessary  to  record  the  proceedings  thereof;  provided,  that 
be  shall  not  incur  or  be  allowed  an  expense  of  more  than  twenty 


^  A  marshal  is  entitled  to  two  dol- 
lai's  for  the  service  of  a  venire  on  a 
state  officer,  where  jurors  are  required 
to  be  drawn  by  such  officer,  but  not 
to  any  niileaire  in  servinji  the  same  : 
United  States  v.  Smith,  W.  &  M.  184. 

Fees  on  execution  and  other  pro- 
cess.— Fees  on  execution  and  other 
process  are  regulated  by  the  laws  of 
the  state,  prescribino;  the  fees  of  shei*- 
iflFs  for  similar  services.  No  further 
allowance  than  two  dollars  and  fifty 
cents  a  day  can  be  made  for  keeping 
property  :  The  Circassian,  6  Ben.  512  ; 
The  llibernia,  1  Sprague  78 ;  Bot- 
tomley  v.  United  States,  1  Story  153. 
The  sum  of  two  dollars  and  fifty  cents 
is  not  allowed  unless  it  is  reasonable, 
and  only  the  actual  and  reasonable 
expenses  of  keeping  and  taking  care 
of  property  actually  in  the  possession 
of  the  marshal  will  be  allowed : 
United  States  v.  500  Barrels,  1  Ben. 
72.  And  the  claim  must  be  estab- 
lished by  vouchers  or  otherwise  to  the 
satisfaction  of  the  court :  The  Free 
Trader,  1  Brown  72;  The  Phebe,  1 
Ware  354.  He  is  also  entitled  to 
charge  for  expenses  of  a  deputy  em- 
ployed in  making  an  arrest,  not  ex- 
ceeding two  dollars  and  fifty  cents  per 
day  :  United  States  v.  Harker,  3  Saw. 
337. 


Marshal's  commissions. — If  the 
claim  or  debt  in  a  case  in  admiralty 
is  settled  after  an  attachment  or  libel 
of  property  without  a  sale,  a  commis- 
sion is  allowed  the  marshal  of  one 
and  one-half  per  cent.  ;  if  there  is  a 
sale,  the  commission  thereon  goes  to 
the  marshal  to  whom  the  process  or 
order  for  a  sale  belongs  for  execution 
and  who  makes  the  sale  :  The  Russia, 
5  Ben.  84 ;  The  City  of  Washington, 
13  Blatch.  410.  But  the  marshal  is 
not  entitled  to  any  commissions  if  the 
suit  is  settled  before  any  claimant 
appears  :  The  Russia,  5  Ben.  84  ;  The 
Norma,  New  533. 

Fees  in  other  cases. — A  marshal 
is  entitled  to  the  fee  for  commitment 
of  a  person,  whether  it  be  on  the  final 
judgment  or  the  order  of  the  court, 
and  whether  a  party  to  the  case  or  a 
witness  :  Ex  parte  Virgel  Paris,  3  W.  & 
M.  227  ;  but  not  to  the  fee  allowed  on 
the  discharge  of  a  prisoner  from  cus- 
tody, where  he  is  merely  brought  into 
court  to  testify  or  to  be  tried :  Id. 

If  a  marshal  serves  a  subpoena  on  a 
witness  out  of  the  state,  he  cannot 
charge  mileage  for  more  than  one  hun- 
dred miles,  although  he  may  have 
travelled  a  greater  distance :  Parker 
V.  Bigler,  1  Fish.  285. 


464  FEDERAL    TLEADIXG,    PRACTICE    AND    PROCEDURE. 

dollars  in  any  one  year  for  furniture,  or  fifty  dollars  for  rent  of  a 
building  and  making  improvements  thereon,  without  first  submitting 
a  statement  and  estimates  to  the  Attorney-General  and  getting  his 
instructions  in  the  premises.' 

No  PER  DIEM  CAN  BE  ALLOAVED  TO  OFFICERS. — Sec.  831.    No  per 

diem  or  other  allowance  shall  be  made  to  any  district  attorney, 
clerk  of  a  circuit  court,  clerk  of  a  district  court,  marshal  or  deputy 
marshal,  for  attendance  at  rule  days  of  a  circuit  or  district  court; 
and  when  the  circuit  and  district  courts  sit  at  the  same  time  no 
greater  per  diem  or  other  allowance  shall  be  made  to  any  such 
officer  than  for  an  attendance  on  one  court. 

No  MILEAGE    CAN  BE  ALLOWED    EXCEPT    FOR    ACTUAL    TRAVEL. — 

Sec.  832.  The  marshal  of  the  Supreme  Court  of  the  United  States 
shall  be  entitled  to  receive  for  the  service  of  any  warrant,  attach- 
ment, summons,  capias  or  other  writ,  except  execution,  venire,  or 
a  summons  or  subpoena  for  a  witness,  one  dollar  for  each  person 
on  whom  such  service  may  be  made.  His  fees  for  all  other  ser- 
vices shall  be  the  same  as  are  herein  allowed  to  other  marshals; 
but  he  shall  pay  into  the  treasury  of  the  United  States  all  fees 
received  by  him,  and  render  a  true  account  thereof  at  the  close  of 
each  term  to  the  Attorney-General. 

The  act  of  February  22,  1875,  ch.  95,  §  7,  18  Stat.  334,  pro- 
vides :  That  the  proviso  in  the  sixth  paragraph  of  the  act  entitled 
"An  act  making  appropriations  for  the  support  of  the  army  for 
the  fiscal  year  ending  June  30,  1875,  and  for  other  purposes," 
approved  June  16,  1874,  shall  not  be  construed  to  apply  or  to 
have  applied  to  attorneys,  marshals,  or  clerks  of  courts  of  the 
United  States,  their  assistants  or  deputies.  And  all  accounts  of 
said  attorneys,  marshals  and  clerks,  for  mileage  and  for  expenses 
in-curred  subsequent  to  the  1st  day  of  July,  1874,  and  prior  to  the 
1st  day  of  January,   1875,  shall    and  may  be  audited,  allowed  and 

^  The  marshal  is  entitled  to  an  al-  to  char^-e  for  superintending  a  state 

lowance  for  maintaining  persons  com-  prison   where  prisoners  ai'e  kept  for 

mitted  to  his  custody,  pending  a  writ  the   United   States  ;    or   for   personal 

of  habeas  corpus :  Case  of  Runaways,  expenses    incurred    by    him    for   the 

4  Cr.  C.  C.  489;   for  money  expended  purpose  of  establishing  and  settling 

for  rent  of   an   office   for  the   clerk:  his  accounts  against  the  government: 

United    States   v.    Cogswell,    3    Sum.  United    States    v.    Cogswell,   3    Sum. 

204;  and  for  interest  on  items  which  2U4  ;  United  States  v.  Smith,   1  W.  & 

are  properly  chargeable   against   the  M.  184. 

government    from   the  time  of  their  For  a  particular  consideration  of  the 

rejection;    but  he  is  not  authorized  dutiesof  a  marshal,  see  u/t/e,  ^  ly  eiAe(/. 


FEES   AND   COSTS.  465 

paid  at  the  Treasury  Department  of  the  United  States  in  the  same 
manner  as  if  said  act  had  not  been  passed.  And  from  and  after 
the  1st  day  of  January,  1875,  no  such  officer  or  person  shall  be- 
come entitled  to  any  allowance  for  mileage  or  travel  not  actually 
and  necessarily  performed  under  the  provisions  of  existing  law. 

Semi-annual  returns  of  fees  to  be  made. — Sec.  833.  Every 
district  attorney,  clerk  of  a  district  court,  clerk  of  a  circuit  court, 
and  marshal,  shall  on  the  first  days  of  January  and  July  in  each 
year,  or  within  thirty  days  thereafter,  make  to  the  Attorney- 
General,  in  such  form  as  he  may  prescribe,  a  written  return  for 
the  half  year  ending  on  said  days,  respectively,  of  all  the  fees  and 
emoluments  of  his  ofiice,  of  every  name  and  character,  and  of  all 
the  necessary  expenses  of  his  ofiice,  including  necessary  clerk-hire, 
together  with  the  vouchers  for  the  payment  of  the  same  for  such 
last  half  year.  He  shall  state  separately  in  such  returns  the  fees 
and  emoluments  received  or  payable  under  the  bankrupt  act ;  and 
every  marshal  shall  state  separately  therein  the  fees  and  emolu- 
ments received  or  payable  for  services  rendered  by  himself  person- 
ally, those  received  or  payable  for  services  rendered  by  each  of  his 
deputies,  naming  him,  and  the  proportion  of  such  fees  and  emolu- 
ments which,  by  the  terms  of  his  service,  each  deputy  is  to  receive. 
Said  returns  shall  be  verified  by  the  oath  of  the  officer  making 
them.     (See  §  3085.) 

What  to  be  included  in  the  semi-annual  return  of  dis- 
trict attorneys  and  marshals. — Sec.  834.  The  preceding  sec- 
tion shall  not  apply  to  the  fees  and  compensation  allowed  to  district 
attorneys  by  sections  825  and  827.  All  other  fees,  charges  and 
emoluments  to  which  a  district  attorney  or  a  marshal  may  be  en- 
titled by  reason  of  the  discharge  of  the  duties  of  his  office,  as  now 
or  hereafter  prescribed  by  law,  or  in  any  case  in  which  the  United 
States  will  be  bound  by  the  judgment  rendered  therein,  whether 
prescribed  by  statute  or  allowed  by  a  court  or  any  judge  thereof, 
shall  be  included  in  the  semi-annual  return  required  of  said  oflScers 
by  the  preceding  section. 

Compensation  op  district  attorney. — Sec.  835.  No  district 
attorney  shall  be  allowed  by  the  Attorney-General  to  retain  of  the 
fees  and  emoluments  of  his  office  which  he  is  required  to  include  in 
his  semi-annual  return,  for  his  personal  compensation,  over  and 
above  the  necessary  expenses  of  his  office,  including  necessary 
30 


466'  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

clerk-hire,  to  be  audited  and  allowed  by  tlie  proper  accounting 
officers  of  the  Treasury  Department,  a  sum  exceeding  six  thou- 
sand dollars  a  year,  or  exceeding  that  rate  for  any  time  less  than 
a  year.^ 

Sum  to  be  paid  district  attorney  of  southern  New  York 
FOR  office  expenses. — See.  836.  There  shall  be  paid  to  the  dis- 
trict attorney  for  the  southern  district  of  New  York,  in  addition  to 
his  salary,  at  the  rate  of  six  thousand  dollars  a  year,  such  sum  as 
shall  be  necessary,  together  with  the  costs  and  fees  allowed  him  by 
law,  to  pay  such  amount  as  may  be  fixed  by  the  Attorney-General 
for  the  proper  expenses  of  his  office.  But  nothing  in  this  or  the 
preceding  section  shall  forbid  the  allowance  of  additional  compen- 
sation for  services  in  prize  causes,  as  provided  in  title  "Prize." 

Fees  of  district  attorneys  and  marshals  in  Oregon  and 
Nevada. — Sec.  837.  The  district  attorneys  and  marshals  for  the 
districts  of  Oregon  and  Nevada  shall  be  entitled  to  receive,  for  the 
like  services,  double  the  fees  hereinbefore  provided  ;  but  neither  of 
them  shall  be  allowed  to  retain  of  such  fees  any  sum  exceeding  the 
aggregate  compensation  of  such  officer  as  hereinbefore  provided. 

Prosecution  for  frauds  on  the  revenue. — Sec.  838  (as 
amended  by  act  of  Feb.  27,  1877,  ch.  69,  §  1,  19  Stat.  240).  It 
shall  be  the  duty  of  every  district  attorney  to  whom  any  collector 
of  customs  or  of  internal  revenue  shall  report,  according  to  law, 
any  case  in  which  any  fine,  penalty  or  forfeiture  has  been  incurred 
in  the  district  of  such  attorney  for  the  violation  of  any  law  of  the 
United  States  relating  to  the  revenue,  to  cause  the  proper  proceed- 
ings to  be  commenced  and  prosecuted  without  delay,  for  the  fines, 
penalties  and  forfeitures  in  such  case  provided,  unless,  upon  inquiry 
and  examination,  he  shall  decide  that  such  proceedings  cannot 
probably  be  sustained,  or  that  the  ends  of  public  justice  do  not 
require  that  such  proceedings  should  be  instituted ;  in  which  case 
he  shall  report  the  facts  in  customs  cases  to  the  Secretary  of  the 
Treasury,  and  in  internal  revenue  cases  to  the  Commissioner  of 
Internal  Revenue,  for  their  direction.  And  for  the  expenses  in- 
curred and  services  rendered  in  all  such  cases,  the  district  attorney 
shall  receive  and  be  paid  from  the  treasury  such  sum  as  the  Secre- 

^  The  compensation  of  the  district  extra  services  :    The   Anna,    Blatch. 

attorney  is  virtually  a  salary,  where  Pr.  Cas.  337  ;  United  States  v.  Inger- 

his  fees  are  in  excess  of  $6000;  and  soil,  Crabbe  135. 
the  statute  forbids  any  allowance  for 


FEES   AND    COSTS.  467 

tary  of  the  Treasury  shall  deem  just  and  reasonable,  upon  the 
certificate  of  the  judge  before  whom  such  cases  are  tried  or  disposed 
of;  provided,  that  the  annual  compensation  of  such  district  attor- 
ney shall  not  exceed  the  maximum  amount  prescribed  by  law,  by 
reason  of  such  allowance  and  payment. 

Compensation  retained  by  the  clerk. — Sec.  839.  No  clerk 
of  a  district  court  or  clerk  of  a  circuit  court  shall  be  allowed  by 
the  Attorney-General,  except  as  provided  in  the  next  section  and 
in  section  842,  to  retain  of  the  fees  and  emoluments  of  his  office, 
or,  in 'case  both  of  the  said  clerkships  are  held  by  the  same  person, 
of  the  fees  and  emoluments  of  the  said  offices  respectively,  for  his 
personal  compensation,  over  and  above  his  necessary  office  expenses, 
including  necessary  clerk-hire,  to  be  audited  and  allowed  by  the 
proper  accounting  officers  of  the  treasury,  a  sum  exceeding  three 
thousand  five  hundred  dollars  a  year  for  any  such  district  clerk  or 
for  any  such  circuit  clerk,  or  exceeding  that  rate  for  any  time  less 
than  a  year. 

Clerks  in  California,  Oregon  and  Nevada,  fees. — Sec.  840. 
The  clerks  of  the  several  circuit  and  district  courts  in  California, 
Oregon  and  Nevada  shall  be  entitled  to  charge  and  receive  double 
the  fees  hereinbefore  allowed  to  clerks,  and  shall  be  allowed  respec- 
tively by  the  Attorney-General  to  retain  of  the  fees  so  received  by 
them  for  their  personal  compensation  over  and  above  the  necessary 
expenses  of  their  offices,  including  the  salaries  of  deputy  clerks  and 
necessary  clerk-hire,  to  be  audited  by  the  proper  accounting  officers 
of  the  Treasury  Department,  any  sum  not  exceeding  seven  thou- 
sand dollars  a  year,  nor  exceeding  that  rate  for  any  time  less  than  a 
year ;  provided^  that  whenever  in  either  of  the  said  districts  the 
same  person  holds  the  office  of  clerk  of  both  the  circuit  and  district 
courts,  he  shall  be  allowed  by  the  Attorney-General  to  retain  for 
his  personal  compensation,  as  aforesaid,  only  such  sum  as  is  herein 
allowed  to  be  retained  by  a  person  holding  the  office  of  clerk  of 
only  one  of  the  said  courts. 

Compensation  of  marshal. — Sec.  841.  No  marshal  shall  be 
allowed  by  the  Attorney-General,  except  as  provided  in  the  next 
section,  to  retain  of  the  fees  and  emoluments  which  he  is  required 
to  include  in  his  semi-annual  return,  as  aforesaid,  for  his  personal 
compensation,  over  and  above  the  necessary  expenses  of  his  office, 
including  necessary  clerk-hire,  to  be  audited  and  allowed  by  the 


46^  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

proper  accounting  officers  of  the  Treasury  Department  and  a  proper 
alloAvance  to  his  deputies,  any  sum  exceeding  six  thousand  dollars 
a  year,  or  exceeding  that  rate  for  any  time  less  than  a  year.  The 
allowance  to  any  deputy  shall  in  no  case  exceed  three-fourths  of  the 
fees  and  emoluments  received  or  payable  for  the  services  rendered 
by  him,  and  may  be  reduced  below  that  rate  by  the  Attorney- 
General  whenever  the  returns  show  such  rate  to  be  unreasonable. 

Additional  compensation  in  prize  causes. — Sec.  842.  Clerks 
and  marshals  may  be  allowed  to  retain,  for  all  official  services  in 
prize  causes,  an  additional  compensation  not  exceeding  in  amount 
one-half  of  the  maximum  compensation  allowed  to  them  respectively 
by  the  three  preceding  sections. 

Allowance  for  each  year  made  from  the  fees. — Sec.  843. 
The  allowances  for  personal  compensation  of  district  attorneys, 
clerks  and  marshals,  for  each  calendar  year,  shall  be  made  from  the 
fees  and  emoluments  of  that  year,  and  not  otherwise. 

Payment  of  surplus  into  the  treasury. — Sec.  844.  Every 
district  attorney,  clerk  and  marshal  shall,  at  the  time  of  making 
his  half-yearly  return  to  the  Attorney-General,  pay  into  the  treas- 
ury, or  deposit  to  the  credit  of  the  Treasurer  as  he  may  be  directed 
by  the  Attorney-General,  any  surplus  of  the  fees  and  emoluments 
of  his  office,  which  said  return  shows  to  exist  over  and  above  the  com- 
pensation and  allowances  authorized  by  law  to  be  retained  by  him. 

Auditing  accounts  of  district  attorney  ;  department  of 
justice. — Sec.  845.  In  every  case  where  the  return  of  a  district 
attorney,  clerk  or  marshal  shows  that  a  surplus  may  exist,  the 
Attorney-General  shall  cause  such  returns  to  be  carefully  exam- 
ined, and  the  accounts  of  disbursements  to  be  regularly  audited  by 
the  proper  officer  of  his  department,  and  an  account  to  be  opened 
with  such  officer  in  proper  books  to  be  provided  for  that  purpose. 

Accounts  of  district  attorneys  certified  by  district 
judge. — Sec.  846.  The  accounts  of  district  attorneys,  clerks,  mar- 
shals and  commissioners  of  circuit  courts  shall  be  examined  and 
certified  by  the  district  judge  of  the  district  for  which  they  are 
appointed,  before  they  are  presented  to  the  accounting  officers  of 
the  Treasury  Department  for  settlement.  They  shall  then  be  sub- 
ject to  revision  upon  their  merits  by  said  accounting  officers,  as  in 
case  of  other  public  accounts  ;  provided,  that  no  accounts  of  fees 
or  costs  paid  to  any  witness  or  juror,  upon  the  order  of  any  judge 


FEES    AND    COSTS.  469 

or  commissioner,  shall  be  so  re-examined  as  to  charge  any  marshal 
for  an  erroneous  taxation  of  such  fees  or  costs. 

(As  amended  by  act  of  Feb.  18,  1875,  ch.  80,  18  Stat.  318.) 
That  where  the  ministerial  officers  of  the  United  States  have  or 
shall  incur  extraordinary  expense  in  executing  the  laws  thereof, 
the  payment  of  which  is  •not  specially  provided  for,  the  President 
of  the  United  States  is  authorized  to  allow  the  payment  thereof 
under  the  special  taxation  of  the  district  or  circuit  court  of  the 
district  in  which  the  said  services  have  been  or  shall  be  rendered, 
to  be  paid  from  the  appropriation  for  defraying  the  expenses  of  the 
judiciary. 

The  act  of  Feb.  22,  1875,  ch.  95,  §  1,  18  Stat.  333,  provides  ; 
That  before  any  bill  of  costs  shall  be  taxed  by  any  judge  or  other 
officer,  or  any  account  payable  out  of  the  money  of  the  United 
States  shall  be  allowed  by  any  officer  of  the  treasury,  in  favor  of 
clerks,  marshals  or  district  attorneys,  the  party  claiming  such  ac- 
count shall  render  the  same,  with  the  vouchers  and  items  thereof, 
to  a  United  States  circuit  or  district  court,  and,  in  presence  of  the 
district  attorney  or  his  sworn  assistant,  whose  presence  shall  be 
noted  on  the  record,  prove  in  open  court,  to  the  satisfaction  of  the 
court,  by  his  own  oath  or  that  of  other  persons  having  knowledge 
of  the  facts,  to  be  attached  to  such  account,  that  the  services 
therein  charged  have  been  actually  and  necessarily  performed  as 
therein  stated,  and  that  the  disbursements  charged  have  been  fully 
paid  in  lawful  money ;  and  the  court  shall  thereupon  cause  to  be 
entered  of  record  an  order  approving  or  disapproving  the  account, 
as  .may  be  according  to  law  and  just.  United  States  commissioners 
shall  forward  their  accounts,  duly  verified  by  oath,  to  the  district 
attorneys  of  their  respective  districts,  by  whom  they  shall  be  sub- 
mitted for  approval  in  open  court,  and  the  court  shall  pass  upon 
the  same  in  the  manner  aforesaid.  Accounts  and  vouchers  of  clerks, 
marshals  and  district  attorneys  shall  be  made  in  duplicate,  to  be 
marked  respectively  "original"  and  "duplicate."  And  it  shall  be 
the  duty  of  the  clerk  to  forward  the  original  accounts  and  vouchers 
of  the  officers  above  specified,  when  approved,  to  the  proper  ac- 
counting officers  of  the  treasury,  and  to  retain  in  his  office  the 
duplicates,  where  they  shall  be  open  to  public  inspection  at  all  times. 
Nothing  contained  in  this  act  shall  be  deemed  in  any  wise  to 
diminish  or  affect  the  right  of  revision  of  the  accounts  to  which 


470  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

this  act  applies  by  the  accounting  officers  of  the  treasury,  as  exer- 
cised under  the  laws  now  in  force. 

The  act  of  Feb. '22,  1875,  ch.  95,  §  5,  18  Stat.  334,  provides  : 
That  if  any  clerk  of  any  district  or  circuit  court  of  the  United 
States  shall  willfully  refuse  or  neglect  to  make  any  report,  certifi- 
cate, statement  or  other  document  required  by  law  to  be  by  him 
made,  or  shall  willfully  refuse  or  neglect  to  forward  any  such  report, 
certificate,  statement  or  document  to  the  department,  officer  or 
person  to  whom  by  law  the  same  should  be  forwarded,  the  Presi- 
dent of  the  United  States  is  empowered,  and  it  is  hereby  made  his 
duty  in  every  such  case,  to  remove  such  clerk  so  offending  from 
ofiice  by  an  order  in  writing  for  that  purpose.  And  upon  the  pres- 
entation of  such  order,  or  a  copy  thereof,  authenticated  by  the 
Attorney-General  of  the  United  States,  to  the  judge  of  the  court 
whereof  such  offender  is  clerk,  such  clerk  shall  thereupon  be 
deemed  to  be  out  of  office,  and  shall  not  exercise  the  functions 
thereof.  And  such  district  judge,  in  the  case  of  the  clerk  of  a 
district  court,  shall  appoint  a  successor;  and  in  the  case  of  the 
clerk  of  a  circuit  court  the  circuit  judge  shall  appoint  a  successor. 
And  such  person  so  removed  shall  not  be  eligible  to  any  appoint- 
ment as  clerk  or  deputy  clerk  for  the  period  of  two  years  next 
after  such  removal. 

The  act  of  Feb.  22,  1875,  ch.  95,  §  6,  18  Stat.  334,  provides: 
That  if  any  clerk  mentioned  in  the  preceding  section  shall  willfully 
refuse  or  neglect  to  make  or  to  forward  any  such  report,  certificate, 
statement  or  document  therein  mentioned,  he  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall  be  punished  by  a  fine  not  ex- 
ceeding one  thousand  dollars,  or  by  imprisonment  not  exceeding 
one  year,  in  the  discretion  of  the  court ;  but  a  conviction  under 
this  section  shall  not  be  necessary  as  a  condition  precedent  to  the 
removal  from  office  provided  for  in  this  act. 

Commissioners'  fees. — Sec.  847.  For  administering  an  oath, 
ten  cents. 

For  taking  an  acknowledgment,  twenty-five  cents. 

For  hearing  and  deciding  on  criminal  charges,  five  dollars  a  day 
for  the  time  necessarily  employed. 

For  attending  to  a  reference  in  a  litigated  matter  in  a  civil  cause 
at  law,  in  equity  or  in  admiralty,  in  pursuance  of  an  order  of  the 
court,  three  dollars  a  day. 


FEES    AND    COSTS.  471 

For  taking  and  certifying  depositions  to  file,  twenty  cents  for 
each  folio. 

For  each  copy  of  the  same  furnished  to  a  party  on  request,  ten 
cents  for  each  folio. 

For  issuing  any  warrant  or  writ,  and  for  any  other  service,  the 
same  compensation  as  is  allowed  to  clerks  for  like  services. 

For  issuing  any  warrant  under  the  tenth  article  of  the  treaty  of 
August  9,  1842,  between  the  United  States  and  the  Queen  of  the 
United  Kingdom  of  Great  Britain  and  Ireland,  against  any  person 
charged  with  any  crime  or  offence  set  forth  in  said  article,  two 
dollars. 

For  issuing  any  warrant  under  the  provision  of  the  convention 
for  the  surrender  of  criminals  between  the  United  States  and  the 
King  of  the  French,  concluded  at  Washington  November  9,  1843, 
two  dollars. 

For  hearing  and  deciding  upon  the  case  of  any  person  charged 
with  any  crime  or  offence,  and  arrested  under  the  provisions  of  said 
treaty  or  of  said  convention,  five  dollars  a  day  for  the  time  neces- 
sarily employed. 

For  the  examination  and  certificate  in  cases  of  applications  for 
discharge  of  poor  convicts  imprisoned  for  non-payment  of  a  fine  or 
fine  and  costs,  five  dollars  a  day  for  the  time  necessarily  employed. 
(See  §  1042.) 

Witnesses'  fees. — Sec.  848.  For  each  day's  attendance  in  court, 
or  before  any  officer  pursuant  to  law,  one  dollar  and  fifty  cents,  and 
five  cents  a  mile  for  going  from  his  place  of  residence  to  the  place 
of  trial  or  hearing,  and  five  cents  a  mile  for  returning.  When  a 
witness  is  subpoenaed  in  more  than  one  cause  between  the  same 
parties  at  the  same  court,  only  one  travel  fee  and  one  per  diem  com- 
pensation shall  be  allowed  for  attendance.  Both  shall  be  taxed  in 
the  case  first  disposed  of,  after  which  the  per  diem  attendance  fee 
alone  shall  be  taxed  in  the  other  cases  in  the  order  in  which  they 
are  disposed  of. 

When  a  witness  is  detained  in  prison  for  want  of  security  for  his 
appearance,  he  shall  be  entitled,  in  addition  to  his  subsistence,  to  a 
compensation  of  one  dollar  a  day.^     (See  §§  879,  881.) 

*  The   terra  "pursuant  to  law"  is  A  witness  is  entitled  to  his  fees  al- 

held  to  apply  to  witnesses  before  com-  though  he  may  have  been  summoned 

missioners  only:    Cummings  v.  The  to  serve  as  a  juror  at  the  same  term, 

Akron  C.  and  P.  Co.,  6  Blatch.  509.  and  did  so  serve :  Edwards  v.  Bond,  5 


472 


FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 


No  OFFICER    OF   COURT   TO    HAVE    WITNESS    FEES. — See.  849.    No 

oflBcer  of  the  United  States  courts  in  any  state  or  territory,  or  in 
the  District  of  Columbia,  shall  be  entitled  to  witness  fees  for  at- 
tending before  any  court  or  commissioner  where  he  is  officiating. 

Expenses  of  clerks  and  other  officers  when  sent  away 
AS  witnesses. — Sec.  850.  When  any  clerk  or  other  officer  of  the 
United  States  is  sent  away  from  his  place  of  business  as  a  witness 
for  the  government,  his  necessary  expenses,  stated  in  items  and 
sworn  to,  in  going,  returning  and  attendance  on  the  court,  shall  be 
audited  and  paid ;  but  no  mileage,  or  other  compensation  in  ad- 
dition to  his  salary,  shall  in  any  case  be  allowed. 

Seamen  sent  home  as  witnesses. — Sec.  851.  There  shall  be 
paid  to  each  seaman  or  other  person  who  is  sent  to  the  United 
States  from  any  foreign  port,  station,  sea  or  ocean,  by  any  United 
States  minister,  charg^  d'aifaires,  consul,  captain  or  commander,  to 
give  testimony  in  any  criminal  case  depending  in  any  court  of  the 
United  States,  sijch  compensation,  exclusive  of  subsistence  and 
transportation,  as  such  court  may  adjudge  to  be  proper,  not  ex- 
ceeding one  dollar   for  each   day  necessarily   employed   in  such 


McLean  300  ;  but  a  party  who  is  called 
as  a  witness  in  his  own  behalf  is  not 
entitled  to  witness  fees :  Nichols  v. 
Brunswick,  3  Cliff.  88.  So,  if  the  tes- 
timony of  witnesses  is  taken  by  con- 
sent before  a  commissioner  in  another 
state,  and  their  attendance  before  such 
commissioner  for  this  purpose  is  vol- 
untary, they  are  entitled  to  fees : 
Spaulding  v.  Tucker,  4  Fish  633  ;  2 
Saw.  50.  And  it  may  be  observed, 
generally,  that  a  witness  who  attends 
in  good  faith  and  is  examined  before 
any  officer  pursuant  to  law,  or  before 
a  court,  is  entitled  to  his  fees,  al- 
though he  was  not  served  with  a  sub- 
poena ;  and  the  same  may  be  taxed 
in  a  proper  case  against  the  adverse 
party:  Dennis  v.  Eddy,  12  Blatch. 
195.  But  if  a  witness  is  summoned 
in  several  cases,  he  is  allowed  a  per 
diem  and  mileage  only  in  one  case, 
unless  the  parties  are  different ;  and 
this  embraces  all  cases  where  the 
plaintiff  is  the  same  but  the  defend- 
ants are  different :  Parker  v.  Bigler,  1 
Fish.  285  ;  Parker  v.  Cartzler,  5  Mc- 
Lean 4. 


If  a  witness  is  committed  for  want 
of  a  recognizance  for  his  appearance, 
he  is  entitled  to  fees  for  the  whole 
time  he  is  detained  :  In  re  Eleanor 
Higginson,  1  Cr.  C.  C.  421  ;  and  if  a 
case  is  postponed  on  account  of  the 
sickness  of  counsel,  the  fees  of  wit- 
nesses may  be  taxed  for  their  actual 
attendance  during  the  postponement : 
Whipple  V.  Cumberland  Cotton  Co., 
3  Story  84.  If  a  witness  has  means 
to  pay  his  travelling  expenses  to  obey 
a  subpoena,  it  is  not  necessary  to  ad- 
vance them  before  he  is  required  to 
obey  it:  United  States  v.  Darling,  4 
Biss.  509 ;  The  Sunny  Side,  5  Ben. 
162. 

In  cases  where  the  United  States 
are  successful  and  the  fees  are  re- 
covered from  the  defendant,  they  are 
not  within  the  provisions  of  this  sec- 
tion and  cannot  be  recovered  from  the 
United  States.  The  section  refers  to 
suits  in  which  the  United  States  were 
unsuccessful,  and  also  to  suits  where 
services  are  required  and  no  fees  are 
taxed  to  the  defendant :  United  States 
V.  Cigars,  37  Leg.  Int.  237. 


FEES   AND    COSTS.  473 

voyage  and  in  arriving  at  the  place  of  examination  or  trial.  In 
fixing  such  compensation,  the  court  shall  take  into  consideration 
the  condition  of  said  seaman  or  witness,  and  whether  his  voyage 
has  heen  broken  up,  to  his  injury,  by  his  being  sent  to  the  United 
States. 

When  such  seaman  or  person  is  transported  in  an  armed  vessel 
of  the  United  States,  no  charge  for  subsistence  or  transportation 
shall  be  allowed.  When  he  is  transported  in  any  other  vessel,  the 
compensation  for  his  transportation  and  subsistence,  not  exceeding 
in  any  case  fifty  cents  a  day,  may  be  fixed  by  the  court,  and  shall 
be  paid  to  the  captain  of  said  vessel  accordingly. 

Jurors'  fees. — Sec.  852  (as  amended  by  act  of  June  20,  1879, 
ch.  52,  §  2,  21  Stat,  43).  For  actual  attendance  at  any  court  or 
courts,  and  for  the  time  necessarily  occupied  in  going  to  and  re- 
turning from  the  same,  two  dollars  a  day  during  such  attendance. 

For  the  distance  necessarily  travelled  from  their  residence  in 
going  to  and  returning  from  said  court  by  the  shortest  practicable 
route,  five  cents  a  mile. 

The  act  of  June  16,  1880,  ch.  247,  §  1,  21  Stat.  290,  provides : 
That  jurors  and  witnesses  in  the  district  and  circuit  courts  of  the 
United  States  in  and  for  the  state  of  Colorado  shall  be  entitled  to 
receive  fifteen  cents  for  each  mile  actually  travelled  in  coming  to  or 
returning  from  said  courts. 

Printers'  fees. — Sec.  853.  For  publishing  any  notice  or  order 
required  by  law,  or  the  lawful  order  of  any  court,  department, 
bureau  or  other  person,  in  any  newspaper,  except  as  mentioned  in 
sections  3823,  3824  and  3825,  title  "  Public  Printing,  Advertise- 
ments and  Public  Documents,"  forty  cents  per  folio  for  the  first 
insertion  and  twenty  cents  per  folio  for  each  subsequent  insertion. 
The  compensation  herein  provided  shall  include  the  furnishing  of 
lawful  evidence,  under  oath,  of  publication,  to  be  made  and  fur- 
nished by  the  printer  or  publisher  making  such  publication. 

Meaning  of  the  term  folio. — Sec.  854.  The  term  folio,  in 
this  chapter,  shall  mean  one  hundred  words,  counting  each  figure 
as  a  word.  When  there  are  over  fifty  and  under  one  hundred 
words,  they  shall  be  counted  as  one  folio ;  but  a  less  number  than 
fifty  words  shall  not  be  counted  except  when  the  whole  statute, 
notice  or  order  contains  less  than  fifty  words. 

The  act  of  March  3,  1877,  ch.  105, 19  Stat.  344,  provides:  And 


474  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

there  shall  be  taxed  against  the  losing  party  in  each  and  every 
cause  pending  in  the  Supreme  Court  of  the  United  States,  or  in 
the  Court  of  Claims  of  the  United  States,  the  cost  of  printing  the 
record  in  such  case,  "which  shall  be  collected,  except  when  the 
judgment  is  against  the  United  States,  by  the  clerks  of  said. courts 
respectively,  and  paid  into  the  treasury  of  the  United  States. 

Fees  of  witnesses  ;  how  paid  and  recovered. — Sec.  855.  In 
cases  where  the  United  States  are  parties,  the  marshal  shall,  on  the 
order  of  the  court,  to  be  entered  on  its  minutes,  pay  to  the  jurors 
and  witnesses  all  fees  to  which  they  appear  by  such  order  to  be 
entitled,  which  sum  shall  be  allowed  him  at  the  treasury  in  his 
accounts. 

Other  fees  ;  how  paid. — See.  856.  The  fees  of  district  attor- 
neys, clerks,  marshals  and  commissioners,  in  cases  where  the  United 
States  are  liable  to  pay  the  same,  shall  be  paid  on  settling  their 
accounts  at  the  treasury. 

Fees  ;  how  recovered. — Sec.  857.  The  fees  and  compensations 
of  the  officers  and  persons  hereinbefore  mentioned,  except  those 
which  are  directed  to  be  paid  out  of  the  treasury,  shall  be  recovered 
in  like  manner  as  the  fees  of  the  officers  of  the  states  respectively 
for  like  services  are  recovered. 


CHAPTER   XXIY. 

PROVISIONS    OF    THE    REVISED    STATUTES    RELATING   TO    EVIDENCE. 

§  525.  Witnesses,  depositions,  subpoenas,  certificates,  authenti- 
cations and  other  matters  relating  to  evidence. — The  Revised  Stat- 
utes, as  amended,  provide  in  reference  to  evidence  as  follows : 

No  WITNESS  CAN  BE  EXCLUDED  ON  ACCOUNT  OF  COLOR. SeC.  858. 

In  the  courts  of  the  United  States  no  witness  shall  be  excluded  in 
any  action  on  account  of  color,  or  in  any  civil  action  because  he  is 
a  party  to  or  interested  in  the  issue  tried ;  provided,  that  in  actions 
by  or  against  executors,  administrators  or  guardians,  in  which  judg- 
ment may  be  rendered  for  or  against  them,  neither  party  shall  be 
allowed  to  testify  against  the  other,  as  to  any  transaction  with  or 
statement  by  the  testator,  intestate  or  ward,  unless  called  to  tes- 
tify thereto  by  the  opposite  party,  or  required  to  testify  thereto  by 
the  court.  In  all  other  respects  the  laws  of  the  state  in  which  the 
court  is  held  shall  be  the  rules  of  decision  as  to  the  competency  of 
witnesses  in  the  courts  of  the  United  States  in  trials  at  common  law, 
and  in  equity  and  admiralty.^     (See  §  1977.) 

The  act  of  March  16,  1878,  ch.  37,  20  Stat.  30,  provides :  That 
in  the  trial  of  all  indictments,  informations,  complaints  and  other 

'  This    section  applies   as   well   to  witness  if  she  is  made  so  under  the 

cases  in  which  the  United  States  are  laws  of  the  state  :  Green  v.  Taylor,  3 

a  party  as  to  those  between  private  Hughes  400 ;  Packet  Co.  v.  Clongh, 

persons:    Green  v.  United    States,  9  20   Wall.    528;    In    re   Campbell,    3 

Wall.  655  ;    and  as  well   to  a  party  Hughes  276. 

who  testifies  on  his  own  behalf  as  to  At  common  law  the  reason  for  ex- 
cases  where  one  party  calls  apother  eluding  a  wife  from  testifying  in  favor 
to  testify  :  Texas  v.  Chiles,  21  Wall,  of  her  husband  did  not  rest  upon  the 
488 ;  Railroad  Co.  v.  Pollard,  22  Wall,  ground  that  she  had  an  interest  in  the 
341.  controversy,  but  upon  grounds  of  pub- 

But  the  statute  does  not  apply  to  lie  policy,  and  under  this  provision 

teri'itorial    courts,    as    they    are    not  she  cannot  testify  where  she  is  a  party 

courts  of  the  United  States  :  Good  v.  to  the  suit,  unless  authorized  to  do  so 

Martin,  95  U.  S.  90.     The  section  in-  by  the  laws  of  the  state :  Id. ;  Lucas 

eludes  not  only  witnesses  orally,  but  v.  Brooks,  18  Wall.  436. 
by  deposition,  who  may  give  evidence         K  a  party  dies  after  his  evidence 

without  regard  to  interest  or  color  :  has    been    taken,   the   adverse    party 

Cornet  v.  Williams,  20  Wall.  226.  may  be  examined  if  the  administra- 

A  husband  is  a  competent  witness  tor  of  the  deceased  party  insists  up- 

for  a  wife,  and  in  an  action  Vjy  a  hus-  on   using   the  depositions   before  the 

band  and  wife  to  recover  damages  for  jury:   Mumm  v.  Owens,  2  Dill.  475. 

an  injury  to  her,  she  is  a  competent  See  also  The  Pollard,  2  M.  L.  16. 


476  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

proceedings  against  persons  charged  with  the  commission  of  crimes, 
offences  and  misdemeanors,  in  the  United  States  courts,  territorial 
courts  and  courts-martial,  and  courts  of  inquiry,  in  any  state  or 
territory,  including  the  District  of  Columbia,  the  person  so  charged 
shall,  at  his  own  request  but  not  otherwise,  be  a  competent  witness. 
And  his  failure  to  make  such  request  shall  not  create  any  presump- 
tion against  him. 

Testimony  of  witnesses  before  Congress  ;  when  not  admis- 
sible AGAINST  THEM. — Sec.  859.  No  testimony  given  by  a  witness 
before  either  house  or  before  any  committee  of  either  house  of 
Congress  shall  be  used  as  evidence  in  any  criminal  proceeding 
against  him  in  any  court,  except  in  a  prosecution  for  perjury  com- 
mitted in  giving  such  testimony.  But  an  official  paper  or  record 
produced  by  him  is  not  within  the  said  privilege.     (See  §  103.) 

When  pleadings  and  disclosures  of  evidence  cannot  be 
USED  AGAINST  A  PARTY. — See.  860.  No  pleading  of  a  party,  nor 
any  discovery  or  evidence  obtained  from  a  party  or  witness  by 
means  of  a  judicial  proceeding  in  this  or  any  foreign  country,  shall 
be  given  in  evidence,  or  in  any  manner  used  against  him  or  his 
property  or  estate,  in  any  court  of  the  United  States,  in  any  crimi- 
nal proceeding,  or  for  the  enforcement  of  any  penalty  or  forfeit- 
ure ;  provided^  that  this  section  shall  not  exempt  any  party  or  wit- 
ness from  prosecution  and  punishment  for  perjury  committed  in 
discovering  or  testifying  as  aforesaid.^ 

Mode  of  proof  in  common  law  actions. — Sec.  861.  The  mode 
of  proof  in  the  trial  of  actions  at  common  law  shall  be  by  oral 
testimony  and  examination  of  witnesses  in  open  court,  except  as  here- 
inafter provided. 

Mode  of  proof  in  equity  and  admiralty. — Sec.  862.  The 
mode  of  proof  in  causes  of  equity  and  of  admiralty  and  maritime 
jurisdiction  shall  be  according  to  rules  now  or  hereafter  prescribed 
by  the  Supreme  Court,  except  as  herein  specially  provided. 

^  Notwithstanding  the  provisions  of  States  v.  Myers,  1  Hughes  533.  But 
this  section,  the  books  and  papers  of  a  defendant  in  an  action  for  a  pen- 
a  party  which  have  been  taken  from  alty  cannot  be  required  to  produce 
him  may  be  given  in  evidence  against  books  and  papers  that  will  subject 
him  in  a  criminal  prosecution  for  the  hira  to  a  penalty  :  Johnson  v.  Donald- 
enforcement  of  a  penalty  or  forfeit-  son,  3  Fed.  Rep.  22.  See  also  United 
ure  :  United  States  v.  Hughes,  12  States  v.  Three  Tons  of  Coal,  6  Biss. 
Blatch.  553 ;  8  Ben.  29  •,  Barnes  v.  379. 
United  States,  21 1.  R.  R.  212  :  United 


EVIDENCE.  477 

Depositions  de  bene  esse. — Sec.  863.  The  testimony  of  any 
•witness  may  be  taken  in  any  civil  cause  depending  in  a  district  or 
circuit  court  by  deposition  de  bene  esse,  when  the  witness  lives  at 
a  greater  distance  from  the  place  of  trial  than  one  hundred  miles, 
or  is  bound  on  a  voyage  to  sea,  or  is  about  to  go  out  of  the  United 
States,  or  out  of  the  district  in  which  the  case  is  to  be  tried,  and 
to  a  greater  distance  than  one  hundred  miles  from  the  place  of  trial, 
before  the  time  of  trial,  or  when  he  is  ancient  and  infirm.  The 
deposition  may  be  taken  before  any  judge  of  any  court  of  the 
United  States,  or  any  commissioner  of  a  circuit  court,  or  any  clerk 
of  a  district  or  circuit  court,  or  any  chancellor,  justice  or  judge  of 
a  supreme  or  superior  court,  mayor  or  chief  magistrate  of  a  city, 
judge  of  a  county  court  or  court  of  common  pleas  of  any  of  the 
United  States,  or  any  notary  public  not  being  of  counsel  or  attor- 
ney to  either  of  the  parties,  nor  interested  in  the  event  of  the 
cause.  Reasonable  notice  must  first  be  given  in  writing  by  the 
party  or  his  attorney  proposing  to  take  such  deposition,  to  the 
opposite  party  or  his  attorney  of  record,  as  either  may  be  nearest, 
which  notice  shall  state  the  name  of  the  witness  and  the  time  and 
place  of  the  taking  of  his  deposition ;  and  in  all  cases  in  rem,  the 
person  having  the  agency  or  possession  of  the  property  at  the  time 
of  seizure  shall  be  deemed  the  adverse  party,  until  a  claim  shall 
have  been  put  in;  and  whenever,  by  reason  of  the  absence  from  the 
district  and  want  of  an  attorney  of  record,  or  other  reason,  the  giv- 
ing of  the  notice  herein  required  shall  be  impracticable,  it  shall  be 
lawful  to  take  such  depositions  as  there  shall  be  urgent  necessity 
for  taking,  upon  such  notice  as  any  judge  authorized  to  hold  courts 
in  such  circuit  or  district  shall  think  reasonable  and  direct.  Any 
person  may  be  compelled  to  appear  and  depose  as  provided  by  this 
section,  in  the  same  manner  as  witnesses  may  be  compelled  to 
appear  and  testify  in  court. ^ 

^  Necessary  conditions  for  taking  trict   to  a  greater  distance  than  one 

AND  READING. — A  deposition  de   bene  hundred  miles  from  the  phice  of  trial 

esse  can  only  be  taken  where  the  fol-  and  before  the  time  of  trial ; 

lowing  conditions  exist:  5.  Or  is  ancient  and  infirm. 

1.  When  the  witness  lives  more  than  And  such  a  deposition  can  only  be 
one  hundred  miles  from  the  place  of  used  upon  the  trial  where  it  is 
trial  ;  shown — 

2.  Or  is  bound  on  a  voyage  to  sea  ;  1.  That  the  witness  is  dead  ; 

3.  Or  is  about  to  go  out  of  the  Unit-  2.  Or  gone  out  of  the  United 
ed  States  ;  States  ; 

4.  Or  is  about  to  go  out  of  the  dis-  3.  Or   to   a  greater    distance  than 


478     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

Mode  of  taking  depositions  de  bene  esse. — Sec.  864.  Every 
person  deposing  as  provided  in  the  preceding  section  shall  be  cau-* 
tioned  and  sworn  to  testify  the  whole  truth,  and  carefully  examined. 
His  testimony  shall  be  reduced  to  writing  by  the  magistrate  taking 
the  deposition,  or  by  himself  in  the  magistrate's  presence,  and  by 
no  other  person,  and  shall,  after  it  has  been  reduced  to  writing,  be 
subscribed  by  the  deponent. 

Transmission  to  the  court  of  depositions  de  bene  esse. — 
Sec.  865.  Every  deposition  taken  under  the  two  preceding  sec- 
tions shall  be  retained  by  the  magistrate  taking  it,  until  he  delivers 
it  with  his  own  hand  into  the  court  for  which  it  is  taken  ;  or  it 
shall,  together  with  a  certificate  of  the  reasons  as  aforesaid  of  tak- 
ing it  and  of  the  notice,  if  any,  given  to  the  adverse  party,  be  by 
him  sealed  up  and  directed  to  such  court,  and  remain  under  his 
seal  until  opened  in  court.  But  unless  it  appears  to  the  satisfac- 
tion of  the  court  that  the  witness  is  then  dead,  or  gone  out  of  the 
United  States,  or  to  a  greater  distance  than  one  hundred  miles 
from  the  place  where  the  court  is  sitting,  or  that  by  reason  of 
age,  sickness,  bodily  infirmity  or  imprisonment,  he  is  unable  to 
travel  and  appear  at  court,  such  deposition  shall  not  be  used  in  the 
cause. 

Depositions  under  dedtmus  potestatum. — Sec.  866.  In  any 
case  where  it  is  necessary  in  order  to  prevent  a  failure  or  delay  of 
justice,  any  of  the  courts  of  the  United  States  may  grant  a  dedimus 
potestatum  to  take  depositions  according  to  common  usage ;  and 
any  circuit  court,  upon  application  to  it  as  a  court  of  equity,  may, 

one  hundred  miles  from  the  place  of  practice  of  the  state  courts,  -which  do 

trial  ;  not   a^ree   with  the    positive    provis- 

4.  Or  that  by  reason  of  age,  sick-  ions  of  this  statute  and   the  rules   of 

ness  or  bodily  infirmity,  he  is  unable  the  federal  courts,  they  are  not  admis- 

to  appear  at  court.  sible:    Evans  v.  Eaton,  7  Wh.  356; 

Harris    v.  Wall,  7  How.  693  ;  The  Evans  v.  Hettick,  3  Wash.  C.  C.  408  ; 

Patapsco  Ins.  Co.  v.  Southtjate,  5  Pet.  Bell  v.  Morrison,  1   Pet.  351  ;    Harris 

604  ;  Wood  V.  Kellogg,  6  McLean  44  ;  v.  Wall,  7  How.  693  ;  Allen  v.  Blunt, 

Bannert  v.  Day,  3  Wash.  243  ;  Stein  v.  2  W.  &  M.  121  ;  Carrington  v.  Stimp- 

Bowman,  13  Pet.  209.  son,  1  Curt.  437. 

The  authority  to  take  depositions         We   have   already   considered    the 

de  bene  esse  is  in  derogation  of  the  subject  of  depositions   in  connection 

rules  of   the  common   law,   and    the  with  the  treatment  of  the  powers  and 

statute  on  this  subject    is    therefore  duties  of  Commissioners  of   the  Cir- 

strictly  construed,  so  that  depositions  cuit  Courts  (see  ante,  ch.  xix.),  and 

which  have  not  been  taken  in  strict  hence  we  will  make  no  further  notes 

accordance    with  the   statute  are   in-  under  this   section    and   sections    b64 

admissible.       And  if  depositions  are  and  865. 
taken  in  accordance  with  the  prevalent 


EVIDENCE.  479 

according  to  the  usages  of  chancery,  direct  depositions  to  be  taken 
in  perpetuam  rei  memoriam,  if  they  relate  to  any  matters  that  may 
be  cognizable  in  any  court  of  the  United  States.  And  the  pro- 
visions of  sections  863,  864  and  865  shall  not  apply  to  any  deposi- 
tion to  be  taken  under  the  authority  of  this  section.^ 

Depositions  in  perpetuam  rei  memoriam. — Sec.  867.  Any 
court  of  the  United  States  may,  in  its  discretion,  admit  in  evidence 
in  any  cause  before  it  any  deposition  taken  in  perpetuam  rei  me- 
moriam which  would  be  so  admissible  in  a  court  of  the  state  wherein 
such  cause  is  pending,  according  to  the  laws  thereof. 

SUBPCENAS    FOR    TAKING    TESTIMONY    BY  COMMISSION. SeC.  868. 

When  a  commission  is  issued  by  any  court  of  the  United  States  for 
taking  the  testimony  of  a  witness  named  therein  at  any  place  within 
any  district  or  territory,  the  clerk  of  any  court  of  the  United  States 
for  such  district  or  territory  shall,  on  the  application  of  either  party 
to  the  suit,  or  of  his  agent,  issue  a  subpoena  for  such  witness,  com- 
manding him  to  appear  and  testify  before  the  commissioner  named 
in  the  commission,  at  a  time  and  place  stated  in  the  subpoena;  and 
if  any  witness,  after  being  duly  served  with  such  subpoena,  refuses 
or  neglects  to  appear,  or,  after  appearing,  refuses  to  testify,  not 
being  privileged  from  giving  testimony,  and  such  refusal  or  neglect 
is  proven  to  the  satisfaction  of  any  judge  of  the  court  whose  clerk 
issues  such  subpoena,  such  judge  may  proceed  to  enforce  obedience 
to  the  process  or  punish  the  disobedience,  as  any  court  of  the  United 
States  may  proceed  in  case  of  disobedience  to  process  of  subpoena 
to  testify  issued  by  such  court. 

SuBPCENAS  DUCES  TECUM. — Sec.  869.  When  either  party  in  such 
suit  applies  to  any  judge  of  a  United  States  court  in  such  district 

^  This  section,  like  all  laws  in  dero-  ford  v.  Miller,  1  Cr.  C.  C.  485  ;  Gustine 

gation  of  the  common  law,  should  be  v.  Ringgold,  4  Cr.  C.  C.  191  ;  Khodes 

strictly  construed  :  United    States  v.  v.  Selin,  4  Wash.  715. 

Parrott,  1  McA.  447.     The  only  mode  The  commission  must    issue   from 

in  which  a  deposition  can  be  taken  in  the    court. — This    section    provides 

a  foreign  country  is  under  a  commis-  that  the  commission  may  be  granted 

sion  :   Stein  v.  Bowman,  13  Pet.  209  ;  by  any  of  the  courts  of  the   United 

Winthrop  v.  Union  Ins.  Co.,  2  Wash.  States  ;    hence   it  cannot  be  granted 

7.     A  commission  may  issue  in  chan-  by  a  judge   at  chambers:   Peters   v. 

eery  suits  although  the  witness  lives  Prevost,  1   Paine  64.     And   the   eom- 

within   the  distance   of  one  hundred  mission  is  not  grantable  of  course,  but 

miles:  Russell  v.  McLellan,  3   W-  &  only  upon   a  showing    that  the   evi- 

M.  157;    but  a  commission  will   not  dence    is    material:   United  States  v. 

issue  in  a  suit  at  law  where  the  wit-  Parrott,  1  McA.  447  ;  Sutton  v.  Man- 

ness  lives  within  that  distance:  Well-  derville,  1  Cr.  C.  C.  115. 


480  FEDERAL    PLEADING,    PKACTICE    AND    PROCEDURE. 

or  territory  for  a  subpoena  commanding  the  witness,  therein  to  be 
named,  to  appear  and  testify  before  said  commissioner  at  the  time 
and  place  to  be  stated  in  the  subpoena,  and  to  bring  with  him  and 
produce  to  such  commissioner  any  paper  or  writing  or  written 
instrument  or  book  or  other  document,  supposed  to  be  in  the  pos- 
session or  power  of  such  witness,  and  to  be  described  in  the  subpoena, 
such  judge,  on  being  satisfied  by  the  affidavit  of  the  person  applying, 
or  otherwise,  that  there  is  reason  to  believe  that  such  paper,  writing, 
written  instrument,  book  or  other  document  is  in  the  possession  or 
power  of  the  witness,  and  that  the  same,  if  produced,  would  be  com- 
petent and  material  evidence  for  the  party  applying  therefor,  may 
order  the  clerk  of  said  court  to  issue  such  subpoena  accordingly. 
And  if  the  witness,  after  being  served  with  such  subpoena,  fails  to 
produce  to  the  commissioner,  at  the  time  and  place  stated  in  the 
subpoena,  any  such  paper,  writing,  written  instrument,  book  or  other 
document,  being  in  his  possession  or  power,  and  described  in  the 
subpoena,  and  such  failure  is  proved  to  the  satisfaction  of  said  judge, 
he  may  proceed  to  enforce  obedience  to  said  process  of  subpoena  or 
punish  the  disobedience  in  like  manner  as  any  court  of  the  United 
States  may  proceed  in  case  of  disobedience  to  like  process  issued 
by  such  court.  When  any  such  paper,  writing,  written  instrument, 
book  or  other  document  is  produced  to  such  commissioner,  he  shall, 
at  the  cost  of  the  party  requiring  the  same,  cause  to  be  made  a 
correct  copy  thereof,  or  of  so  much  thereof  as  shall  be  required  by 
either  of  the  parties. 

Witnesses  when  required  to  attend,  when  not. — Sec.  870. 
No  witness  shall  be  required,  under  the  provisions  of  either  of  the 
two  preceding  sections,  to  attend  at  any  place  out  of  the  county 
where  he  resides,  nor  more  than  forty  miles  from  the  place  of  his 
residence,  to  give  his  deposition ;  nor  shall  any  witness  be  deemed 
guilty  of  contempt  for  disobeying  any  subpoena  directed  to  him  by 
virtue  of  either  of  the  said  sections,  unless  his  fee  for  going  to, 
returning  from,  and  one  day's  attendance  at,  the  place  of  examina- 
tion are  paid  or  tendered  to  him  at  the  time  of  the  service  of  the 
subpoena.^ 

1  Examination   under  commission,  en,  3  Id.  109.     The  laws  of  the  states 

— All  the  interrogatories  must  be  put  as  to  practice  in  such  cases  are  not 

to  the  witness  or  the  deposition  cannot  binding  upon  the  courts  of  the  United 

be  read  :  Winthrop  v.  Union  Ins.  Co.,  States  :  Bell  v.  Davidson,  3  Wash.  C. 

2  Wash.  C.  C.  7  ;  Richardson  v.  Gold-  C.  328  ;  Curtis  v.  The  Central  R.  Co., 


EVIDENCE. 


481 


Depositions  in  the  District  of  Columbia  to  be  used  else- 
where.— See.  871,  When  a  commission  to  take  the  testimony  of 
any  witness  found  within  the  District  of  Columbia,  to  be  used  in  a 
suit  depending  in  any  state  or  territorial  or  foreign  court,  is  issued 
from  such  court,  or  a  notice  to  the  same  effect  is  given  according  to 


6  McLean  401.  The  authority  jrivon 
the  commissioner  must  be  strictly 
pursued  :  Gupp  v.  Brown,  4  Dall.  410  ; 
Boudereau  v.  Montcromery,  4  Wash. 
186.  If  a  commission  is  issued  to 
several  parties,  all  must  join  in  the 
return  :  Munns  v.  Dupont,  3  Wash. 
31;  Gupp  V.  BroAvn,  4  Dall.  410; 
Armstronij  v.  Brown,  1  Wash.  43. 

Notice  of  time  and  place  for  oral 
EXAMINATION. — If  the  application  does 
not  designate  the  time  and  place  where 
depositions  are  to  be  taken,  the  party 
desiring  them,  or  the  commissioner, 
should  give  the  opposite  party  notice 
thereof.  See  post,  Equity  Rule  67  ; 
Rhodes  v.  Selin,  4  Wash.  515  ;  Knode 
W.Williamson,  17  Wall.  586;  and  the 
return  of  the  officer  should  show  that 
due  notice  was  given,  where  that  is 
required,  and  that  the  depositions 
were  taken  at  the  time  and  place 
designated  :  Id. ;  Boudereau  v.  Mont- 
gomery, 4  Wash.  186.  The  notice 
may  be  served  on  the  opposite  psirty 
or  his  attorney  :  Merrill  v.  Dawson, 
Hump.  563;  s.  c,  11  How.  375;  and 
it  may  be  served  personally  or  by 
mail,  or  by  leaving  a  copy  with  a 
member  of  the  iamily  at  the  residence 
of  the  opposite  party  :  Id.  ;  Walker  v. 
Parker,  5  Cr.  C.  C.  639 ;  and  it  must 
give  a  reasonable  time  for  him  to  ap- 
pear:  Nicholls  V.  White,  1  Cr.  C.  0. 
58 ;  but  a  deposition  taken  by  one 
party,  without  notice,  may  be  read  by 
the  other  party  :  Yeaton  v.  Fry,  5  Cr. 
C.  C.  335.  See  also  Shutte  v.  Thomp- 
son, 15  Wall.  151  ;  York  Company  i;. 
Central  R.  Co.,  3  Id.  113. 

Execution  of  commission  under 
Equity  Rule  67. — The  return  should 
show  that  the  commissioner  took  the 
oath  annexed  to  the  commission,  un- 
less the  deposition  is  taken  before  a 
commissioner  of  the  circuit  court,  in 
which  case  it  is  not  necessary  that 
this  should  appear  :  Winter  v.  Simon- 
ton,  3  Cr.  C.  C.  U)4;  Iloyt  v.  llam- 
31 


mekin,  14  How.  346;  Frewall  v. 
Baohe,  1  Cr.  C.  C.  463.  The  return 
of  the  commissioner  is  prima  facie 
evidence  of  the  facts  stated  therein  in 
relation  to  the  execution  of  the  com- 
mission :  Id.  ;  Boudereau  v.  Mont- 
gomery, 4  Wash.  186. 

Where  written  interrogatories 
ARE  filed. — If  a  foreign  commission 
is  asked  for,  and  in  accordance  with 
the  general  rules  of  practice  in  such 
cases  interrogatories  and  cross  inter- 
i-ogatories  are  filed,  this  would  be  a 
waiver  of  previous  irregularities,  and 
in  such  a  case  neither  the  parties  nor 
their  attorneys  can  appear  before  the 
commissioner  on  the  examination,  nor 
can  the  witness  have  a  friend  to  assist 
him  :  Cunningham  v.  Otis,  1  Gallis. 
166;  Knode  v.  Williamson,  17  Wall. 
586  ;  Sargeant  v.  Biddle,  4  Wh.  508  ; 
Mechanics'  Bank  v.  Seton,  1  Pet.  299. 

What  the  return  should  show. — 
The  return  should  show  that  the  wit- 
ness was  duly  sworn,  but  it  is  not 
necessary  to  set  out  the  form  of  the 
oath  :  Jones  v.  Oregon  Central  R.  Co., 
3  Saw.  523  ;  Keene  v.  Meade,  3  Pet.  1. 
The  return  need  not  show  in  whose 
handwriting  the  deposition  was  taken 
down:  Id,  But  if  exhibits  are  re- 
ferred to  by  the  witness,  they  should 
be  annexed  to  the  deposition  and 
identified  by  marks  or  references  to 
show  they  are  the  identical  exhibits 
referred  to  by  the  witness :  Dodge  v. 
Israel,  4  Wash.  323. 

When  a  deposition  has  been  used 
without  objection  in  the  court  below, 
it  cannot  be  objected  to  on  appeal  or 
writ  of  error  in  the  Supreme  Court: 
Brown  v.  Tarkington,  3  Wall.  377  ; 
Vattier  v.  Hinde,  7  Pet.  252  ;  The 
Samuel,  1  Wh,  9  ;  Evans  v.  llettich, 
7  Id.  453. 

For  full  directions  as  to  the  mode 
of  procedure  iu  taking  depositions  in 
equity  causes,  see  post,  Equity  Rule 
No.  67. 


482  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

its  rules  of  practice,  and  such  commission  or  notice  is  produced  to 
a  justice  of  the  supreme  court  of  said  district,  and  due  proof  is  made 
to  him  that  the  testimony  of  such  witness  is  material  to  the  party 
desiring  the  same,  the  said  justice  shall  issue  a  summons  to  the 
witness,  requiring  him  to  appear  before  the  commissioners  named 
in  the  commission  or  notice,  to  testify  in  such  suit,  at  a  time  and 
at  a  place  within  said  district  therein  specified. 

Depositions  when  taken  in  the  District  of  Columbia 
WITHOUT  presence  OR  CONSENT. — See.  872.  When  it  satisfactorily 
appears  by  affidavit  to  any  justice  of  the  supreme  court  of  the 
District  of  Columbia,  or  to  any  commissioner  for  taking  depositions 
appointed  by  said  court — 

First.  That  any  person  within  said  district  is  a  material  witness 
for  either  party  in  a  suit  pending  in  any  state  or  territorial  or 
foreign  court ; 

Second.  That  no  commission  nor  notice  to  take  the  testimony 
of  such  witness  had  been  issued  or  given  ;  and 

Third.  That,  according  to  the  practice  of  the  court  in  which  the 
suit  is  pending,  the  deposition  of  a  witness  taken  without  the 
presence  and  consent  of  both  parties  will  be  received  on  the  trial 
or  hearing  thereof,  such  officer  shall  issue  his  summons,  requiring 
the  witness  to  appear  before  him  at  a  place  within  the  district, 
at  some  reasonable  time,  to  be  stated  therein,  to  testify  in  such 
suit. 

Manner  of  taking  and  transmitting  depositions  in  such 
cases. — Sec.  873.  Testimony  obtained  under  the  two  preceding 
sections  shall  be  taken  down  in  writing  by  the  officer  before  whom 
the  witness  appears,  and  shall  be  certified  and  transmitted  by  him 
to  the  court  in  which  the  suit  is  pending,  in  such  manner  as  the 
practice  of  that  court  may  require.  If  any  person  refuses  or 
neglects  to  appear  at  the  time  and  place  mentioned  in  the  sum- 
mons, or,  on  his  appearance,  refuses  to  testify,  he  shall  be  liable  to 
the  same  penalties  as  would  be  incurred  for  a  like  offence  on  the 
trial  of  a  suit. 

Witness  fees  in  such  cases. — Sec.  874.  Every  wituess  appear- 
ing and  testifying  under  the  said  provisions  relating  to  the  District 
of  Columbia  shall  be  entitled  to  receive  for  each  day's  attendance, 
from  the  party  at  whose  instance  he  is  summoned,  the  fees  now 
provided  by  law  for  each  day  he  shall  give  attendance. 


EVIDENCE.  483 

Letters  rogatory  from  United  States  courts. — Sec.  875. 
When  any  commission  or  letter  rogatory,  issued  to  take  the  testimony 
of  any  witness  in  a  foreign  country,  in  any  suit  in  which  the  United 
States  are  parties  or  have  an  interest,  is  executed  by  the  court  or 
the  commissioner  to  whom  it  is  directed,  it  shall  be  returned  by 
such  court  or  commissioner  to  the  minister  or  consul  of  the  United 
States  nearest  the  place  where  it  was  executed.  On  receiving  the 
same,  the  said  minister  or  consul  shall  indorse  thereon  a  certificate 
stating  when  and  where  the  same  was  received,  and  that  the  said 
deposition  is  in  the  same  condition  as  when  he  received  it ;  and  he 
shall  thereupon  transmit  the  said  letter  or  commission,  so  executed 
and  certified,  by  mail,  to  the  clerk  of  the  court  from  which  the  same 
issued,  in  the  manner  in  which  his  official  dispatches  are  transmitted 
to  the  government.  And  the  testimony  of  witnesses  so  taken  and 
returned  shall  be  read  as  evidence  on  the  trial  of  the  suit  in  which 
it  was  taken,  without  objection  as  to  the  method  of  returning  the 
same.  As  amended  by  act  of  February  28,  1876,  ch.  69,  11)  Stat. 
241.  When  letters  rogatory  are  addressed  from  any  court  of  a 
foreign  country  to  any  circuit  court  of  the  United  States,  a  com- 
missioner of  such  circuit  court  designated  by  such  court  to  make 
the  examination  of  the  witnesses  mentioned  in  said  letter,  shall 
have  power  to  compel  the  witness  to  appear  and  depose  in  the  same 
manner  as  witnesses  may  be  compelled  to  appear  and  testify  in 
courts.     (See  §§  4071-4074.) 

Subpcenas  to  run  into  other  districts. — Sec.  876.  Subpoenas 
for  witnesses  who  are  required  to  attend  a  court  of  the  United  States, 
in  any  district,  may  run  into  any  other  district ;  provided,  that  in 
civil  causes  the  witnesses  living  out  of  the  district  in  which  the 
court  is  held  do  not  live  at  a  greater  distance  than  one  hundred 
miles  from  the  place  of  holding  the  same.^ 

Witnesses  on  the  part  of  the  United  States — Sec.  877. 
Witnesses  who  are  required  to  attend  any  term  of  a  circuit  or  dis- 
trict court  on  the  part  of  the  United  States  shall  be  subpoenaed  to  at- 
tend to  testify  generally  on  their  behalf,  and  not  to  depart  court  with- 

^  The  distance  a  witness  resides  from  district,  but  not  more  than  one  hun- 

the  place  of  holding  the  court  is  to  be  dred  miles  from  the  place  of  trial,  has 

determined  not  by  an  air  line,  but  been  duly  subpoenaed,  but  fails  to  at- 

by  the  actual  distance  by  the  most  tend,  the  court  may  issue  an  attach- 

convenient    and    usual     routes:    Ex  ment  for  him:  United  States  v.  Wil- 

parte  Becbees,  2  Wall.  Jr.  127.     And  liams,  4  Cr.  C.  C.  372. 
if  a   witness    livino;   within    another 


1 


484  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

out  leave  thereof,  or  of  the  district  attorney ;  and  under  such  pro- 
cess they  shall  appear  before  the  grand  or  petit  jury,  or  both,  as 
they  may  be  required  by  the  court  or  district  attorney. 

Witness  on  behalf  of  indigent  defendants  in  criminal 
CASES. — Sec.  878.  Whenever  any  person  indicted  in  a  court  of  the 
United  States  makes  affidavit,  setting  forth  that  there  are  witnesses 
whose  evidence  is  material  to  his  defence ;  that  he  cannot  safely 
go  to  trial  without  them ;  what  he  expects  to  prove  by  each  of 
them  ;  that  they  are  within  the  district  in  which  the  court  is  held, 
or  within  one  hundred  miles  of  the  place  of  trial;  and  that  he  is 
not  possessed  of  sufficient  means,  and  is  actually  unable  to  pay  the 
fees  of  such  witnesses,  the  court  in  term,  or  any  judge  thereof  in  va- 
cation, may  order  that  such  witnesses  be  subpoenaed  if  found  within 
the  limits  aforesaid.  In  such  case  the  costs  incurred  by  the  pro- 
cess and  the  fees  of  the  witnesses  shall  be  paid  in  the  same  manner 
that  similar  costs  and  fees  are  paid  in  case  of  witnesses  subpoenaed 
in  behalf  of  the  United  States. 

Recognizances  of  witnesses  in  criminal  cases. — Sec.  879. 
Any  judge  or  other  officer  who  may  be  authorized  to  arrest  and  im- 
prison or  bail  persons  charged  with  any  crime  or  offence  against 
the  United  States  may,  at  the  hearing  of  any  such  charge,  require 
of  any  witness  produced  against  the  prisoner,  on  pain  of  imprison- 
ment, a  recognizance,  with  or  without  sureties  in  his  discretion,  for 
his  appearance  to  testify  in  the  case.  And  where  the  crime  or 
offence  is  charged  to  have  been  committed  on  the  high  seas  or  else- 
Avhere  within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  he  may,  in  his  discretion,  require  a  like  recognizance,  with 
such  sureties  as  he  may  deem  necessary,  of  any  witness  produced 
in  behalf  of  the  accused  whose  testimony  in  his  opinion  is  important 
and  is  in  danger  of  being  otherwise  lost.     (See  §§  848,  1014.) 

Recognizances  in  the  district  of  Vermont. — Sec.  880.  In 
the  district  of  Vermont  all  recognizances  of  witnesses  taken  by  any 
magistrate  in  said  district  for  their  appearance  to  testify  in  any  case 
cognizable  either  in  the  district  or  circuit  court  thereof  shall  be  to 
the  circuit  court  next  thereafter  to  be  held  in  the  said  district. 

Recognizances  may  be  required  at  any  time  by  district 
attorney. — Sec.  881.  Any  judge  of  the  United  States,  on  the  ap- 
plication of  a  district  attorney,  and  on  being  satisfied  by  proof  that 
the  testimony  of  any  person  is  competent  and  will  be  necessary  on 


EVIDENCE. 


485 


the  trial  of  any  criminal  proceeding  in  which  the  United  States  are 
parties  or  are  interested,  may  compel  such  person  to  give  recog- 
nizance with  or  without  sureties,  at  his  discretion,  to  appear  to 
testify  therein  ;  and  for  that  purpose  may  issue  a  warrant  against 
such  person  under  his  hand,  with  or  without  seal,  directed  to  the 
marshal  or  other  oflScer  authorized  to  execute  process  in  behalf  of 
the  United  States,  to  arrest  and  bring  before  him  such  person.  If 
the  person  so  arrested  neglects  or  refuses  to  give  recognizance  in 
the  manner  required,  the  judge  may  issue  a  warrant  of  commitment 
against  him,  and  the  officer  shall  convey  him  to  the  prison  men- 
tioned therein.  And  the  said  person  shall  remain  in  confinement 
until  he  is  removed  to  the  court  for  the  purpose  of  giving  his  testi- 
mony, or  until  he  gives  the  recognizance  required  by  said  judge. 
(See  §  848.) 

Copies  of  books  and  other  papers  in  any  executive  de- 
partment.— Sec.  882.  Copies  of  any  books,  records,  papers  or 
documents  in  any  of  the  executive  departments,  authenticated  under 
the  seals  of  such  departments  respectively,  shall  be  admitted  in 
evidence  equally  with  the  originals  thereof.^ 


'  The  term  "  papers  or  documents  " 
in  this  section  refers  only  to  such  doc- 
uments as  are  made  by  an  officer  or 
agent  of  the  government  in  the  dis- 
charge of  his  official  duty  ;  and  if  it 
was  not  the  duty  of  such  officer  or 
agent  to  file  a  paper  or  document  in 
the  department,  an  authenticated  copy 
thereof  would  not  be  competent  evi- 
dence :  Block  V.  The  United  States, 
7  Ct.  CI.  406. 

If  a  party  desires  to  use  such  paper 
or  document  as  evidence  in  a  suit 
against  the  United  States,  he  must 
procure  a  certified  copy,  and  cannot 
use  a  mere  copy  upon  notice  to  the 
government  to  produce  the  original : 
Barney  v.  Schmeider,  9  Wall.  248 ; 
Chadwick  v.  United  States,  3  Fed. 
Rep.  750. 

What  is  sufficient  authentica- 
tion OF    PAPERS   OR    DOCUMENTS. The 

certificate  of  the  Secretary  of  State, 
under  the  seal  of  his  department,  is 
competent  evidence  to  prove  the  diplo- 
matic character  of  a  minister  accred- 
ited to  the  United  States  and  the 
time  when  he  was  recognized  as  such  : 
United  States  v.  Liddle,  2  Wash.  205  ; 


United  States  v.  Beamer,  Bald.  234. 
See  also  White  v.  St.  Guirons,  Minor 
331  ;  Catlett  v.  Pacific  Ins.  Co.,  1 
Paine  594  ;  Bleecker  v.  Bond,  3  Wash. 
529 ;  Chadwick  v.  United  States,  3 
Fed.  Rep.  750.  But  the  mode  of  au- 
thentication prescribed  by  the  statute 
must  be  strictly  pursued:  Block  v. 
United  States,  7  Ct.  CI.  406.  Thus,  a 
copy  of  an  adjudication  of  a  claim  in 
the  Treasury  Department,  certified  by 
the  Auditor,  but  without  the  seal  of 
the  department,  is  not  competent  evi- 
dence :  WicklifiFe  v.  Hill,  3  Litt.  330. 

A  copy  of  the  bond  of  a  collector 
of  internal  revenue  authenticated  by 
the  Secretary  of  the  Treasury,  and 
under  the  seal  of  the  Treasury  Depart- 
ment, is  competent  evidence:  Chad- 
wick V.  United  States,  3  Fed.  Rep.  750 ; 
and  a  quarterly  return  required  to 
be  made  and  filed  in  the  department, 
duly  certified  by  the  Secretary,  and 
under  the  seal  of  the  department,  is 
competent  evidence :  Id.  So  a  certi- 
fied copy  of  similar  papers  in  the 
office  of  the  Quartermaster,  under 
his  hand  and  the  seal  of  the  depart- 
ment, would  be  competent  evidence. 


486         federal  pleading,  practice  and  procedure. 

Copies  as  evidence  of  papers  in  the  office  of  Solicitor  of 
Treasury. — Sec.  883.  Copies  of  any  documents,  records,  books  or 
papiers  in  the  office  of  the  Solicitor  of  the  Treasury,  certified  by  him 
under  the  seal  of  his  office,  or,  when  his  office  is  vacant,  by  the 
officer  acting  as  Solicitor  for  the  time,  shall  be  evidence  equally  with 
the  originals. 

Papers  executed  by  the  Comptroller  of  the  Currency. — 
Sec.  884.  Every  certificate,  assignment  and  conveyance  executed 
by  the  Comptroller  of  the  Currency,  in  pursuance  of  law,  and  sealed 
with  his  seal  of  office,  shall  be  received  in  evidence  in  all  places  and 
courts ;  and  all  copies  of  papers  in  his  office,  certified  by  him  and' 
authenticated  by  the  said  seal,  shall  in  all  cases  be  evidence  equally 
with  the  originals.  An  impression  of  such  seal  directly  on  the 
paper  shall  be  as  valid  as  if  made  on  wax  or  wafer. 

Certificates  of  organization  of  national  banks. — Sec.  885. 
Copies  of  the  organization  certificate  of  any  national  banking  asso- 
ciation, duly  certified  by  the  Comptroller  of  the  Currency,  and 
authenticated  by  his  sea4  of  office,  shall  be  evidence  in  all  courts 
and  places  within  the  jurisdiction  of  the  United  States  of  the  exist- 
ence of  the  association,  and  of  every  matter  which  could  be  proved 
by  the  production  of  the  original  certificate.     (See  §  5135.) 

Transcripts  of  books  of  the  Treasury. — Sec.  886.  When 
suit  is  brought  in  any  case  of  delinquency  of  a  revenue  officer  or 
other  person  accountable  for  public  money,  a  transcript  from  the 
books  and  proceedings  of  the  Treasury  Department,  certified  by  the 
Register  and  authenticated  under  the  seal  of  the  department,  or, 
when  the  suit  involves  the  accounts  of  the  War  or  Navy  Depart- 
ments, certified  by  the  auditors  respectively  charged  with  the  ex- 
amination of  those  accounts,  and  authenticated  under  the  seal  of 
the  Treasury  Department,  shall  be  admitted  as  evidence,  and  the 
court  trying  the  cause  shall  be  authorized  to  grant  judgment  and 
award  execution  accordingly.  And  all  copies  of  bonds,  contracts 
or  other  papers  relating  to,  or  connected  with,  the  settlement  of 
any  account  between  the  United  States  and  an  individual,  when 
certified  by  the  Register,  or  by  such  Auditor,  as  the  case  may  be, 

If  an  officer   having   charge   of    a  his  hand  and  seal  of  office,  the  paper 

paper  certifies  that  a  paper  is  a  true  is  properly  authenticated  :  Thompson 

copy  of  the  original,  and  the  head  of  v.    Smith,   2    Bond   320 ;    Crowell    v. 

the  department  certifies   as  to  the  of-  Hopkinton,  45  N.  H.  9. 
fiuial  character  of  the  former  under 


EVIDENCE. 


487 


to  be  true  copies  of  the  originals  on  file,  and  authenticated  under 
the  seal  of  the  department,  may  be  annexed  to  such  transcripts, 
and  shall  have  equal  validity,  and  be  entitled  to  the  same  degree 
of  credit  which  would  be  due  to  the  original  papers  if  produced  and 
authenticated  in  court ;  provided,  that  where  a  suit  is  brought  upon 
a  bond  or  other  sealed  instrument,  and  the  defendant  pleads  "  non 
est  factum,"  or  makes  his  motion  to  the  court,  verifying  such  plea 
or  motion  by  his  oath,  the  court  may  take  the  same  into  considera- 
tion, and,  if  it  appears  to  be  necessary  for  the  attainment  of  jus- 
tice, may  require  the  production  of  the  original  bond,  contract  or 
other  paper  specified  in  such  affidavit.^ 

Transcripts  of  books  of  treasury  in  case  of  embezzlement. 
— Sec.  887.  Upon  the  trial  of  any  indictment  against  any  person 
for  embezzling  public  moneys,  it  shall  be  sufficient  evidence,  for 
the  purpose  of  showing  a  balance  against  such  person,  to  produce 
a  transcript  from  the  books  and  proceedings  of  the  Treasury 
Department,  as  provided  by  the  preceding  section. 


^  This  section  extends  to  any  case 
of  delinquency  on  the  part  of  any  per- 
son accountable  for  public  money: 
Bechtel  v.  United  States,  597  ;  and  it 
applies  to  sureties  of  such  persons  as 
well  as  to  the  defaulting  principal : 
United  States  v.  Gaussen,  19  Wall. 
198.  See  also  Chadwick  v.  United 
States,  3  Fed.  Rep.  750  ;  United  States 
V.  Egfi;leston,  4  Saw.  199 ;  Soule  v. 
United  States,  100  U.  S.  8  ;  Walton  v. 
United  States,  9  Wh.  651  ;  United 
States  V.  Eckford,  1  How.  250 ;  but 
a  certified  transcript  from  the  books 
and  proceedings  of  the  Treasury  De- 
partment is  only  prima  facie  evidence 
of  the  facts  stated  therein,  so  far  as 
the  same  are  authorized  by  law  ;  and 
any  error  therein  may  be  corrected  : 
Id.  An  authenticated  transcript  from 
the  books  is  competent  prima  facie 
evidence  to  show  that  an  officer  re- 
ceived the  money  charged  against 
him,  and  need  not  be  accompanied  by 
authenticated  copies  of  his  receipts : 
Bruce  v.  United  States,  17  How.  437. 
See  also  United  States  v.  Jones,  8  Pet. 
375  ;  United  States  v.  Martin,  2  Paine 
68  ;  United  States  v.  Kuhn,  4  Cr.  (C. 
C.)  401.  The  transcript  is  also  prima 
facie  evidence  of  the  capacity  in  which 


the  officer  acted  :  Smith  v.  United 
States,  5  Pet.  292  ;  but  the  officers  of 
the  Treasury  Department  cannot  cer- 
tify to  matters  that  do  not  come  with- 
in official  knowledge :  United  States 
V.  Jones,  8  Pet.  375 ;  United  States  v. 
Kuhn,  4  Cr.  (C.  C.)  401. 

A  transcript  or  copy  of  books,  or  a 
portion  of  them,  duly  authenticated  by 
the  proper  head  of  a  department,  and 
under  its  seal,  is  competent  evidence 
United   States  v.  Buford,  3  Pet.   12 
United  States  v.  Jones,  8  Pet.  375 
United   States  v.    Gaussen,    19  Wall. 
198. 

The  statement  of  a  gross  amount 
contained  in  a  transcript  is  not  com- 
petent evidence  thereof,  but  it  should 
contain  a  statement  of  the  items  of 
the  account  on  both  sides,  both  the 
debits  and  the  credits,  as  they  were 
acted  upon  by  the  accounting  officers 
of  the  government:  Id.  ;  United  States 
V.    Edward,   1  McLean  467  ;    United 
States  V.  Vanzandt,  2  Cr.  (C.  C.)  338 
Gratiot  v.  United  States,  15  Pet.  336 
Hoyt  V.  United  States,  10  How.  109 
Ex  parte    Randolph,  2   Brock   447 
United    States   v.   Collier,    3    Blatch 
325. 


488  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

Copies  of  returns  in  return  office. — Sec.  888.  A  copy  of 
any  return  of  a  contract  returned  and  filed  in  the  returns-office  of 
the  Department  of  the  Interior,  as  provided  by  law,  when  certified 
by  the  clerk  of  the  said  office  to  be  full  and  complete,  and  when 
authenticated  by  the  seal  of  the  department,  shall  be  evidence  in 
any  prosecution  against  any  officer  for  falsely  and  corruptly  swear- 
ing to  the  affidavit  required  by  law  to  be  made  by  sucli  officer  in 
making  his  return  of  any  contract,  as  required  by  law,  to  said 
returns-office.     (See  §  3744.) 

Copies  of  post-office  records  and  of  auditor's  statement. 
— Sec.  889.  Copies  of  the  quarterly  returns  of  postmasters  and 
of  any  papers  pertaining  to  the  accounts  in  the  office  of  the  Sixth 
Auditor,  and  transcripts  from  the  money-order  account-books  of 
the  Post-Office  Department,  when  certified  by  the  Sixth  Auditor, 
under  the  seal  of  his  office,  shall  be  admitted  as  evidence  in  the 
courts  of  the  United  States,  in  civil  suits  and  criminal  prosecu- 
tions ;  and  in  any  civil  suit,  in  case  of  delinquency  of  any  post- 
master or  contractor,  a  statement  of  the  account,  certified  as 
aforesaid,  shall  be  admitted  in  evidence,  and  the  court  shall  be 
authorized  thereupon  to  give  judgment  and  award  execution,  sub- 
ject to  the  provisions  of  law  as  to  proceedings  in  such  civil  suits. 

Copies  of  statements  by  Post-Office  Department. — Sec.  890. 
In  all  suits  for  the  recovery  of  balances  due  from  postmasters,  a 
copy,  duly  certified  under  the  seal  of  the  Sixth  Auditor,  of  the 
statement  of  any  postmaster,  special  agent  or  other  person 
employed  by  the  Postmaster-General  or  the  Auditor  for  that  pur- 
pose, that  he  has  mailed  a  letter  to  such  delinquent  postmaster  at 
the  post-office  where  the  indebtedness  accrued,  or  at  his  last  usual 
place  of  abode ;  that  a  sufficient  time  has  elapsed  for  said  letter  to 
have  reached  its  destination  in  the  ordinary  course  of  the  mail ; 
and  that  payment  of  such  balance  has  not  been  received,  within  the 
time  designated  in  his  instructions,  shall  be  received  as  sufficient 
evidence  in  the  courts  of  the  United  States,  or  other  courts,  that  a 
demand  has  been  made  upon  the  delinquent  postmaster  ;  but  when 
the  account  of  a  late  postmaster  has  been  once  adjusted  and  settled 
and  a  demand  has  been  made  for  the  balance  appearing  to  be  due, 
and  afterward  allowances  are  made  or  credits  entered,  it  shall  not 
be  necessary  to  make  a  further  demand  for  the  new  balance  found 
to  be  due. 


EVIDENCE.  489 

Copies  of  records  of  General  Land-Office.  —  See.  891. 
Copies  of  any  records,  books  or  papers  in  the  General  Land-Office, 
authenticated  by  the  seal  and  certified  by  the  Commissioner  thereof 
or,  when  his  office  is  vacant,  by  the  principal  clerk,  shall  be  evi- 
dence equally  with  the  originals  thereof.  And  literal  exemplifica- 
tions of  any  such  records  shall  be  held,  when  so  introduced  in  evi- 
dence, to  be  of  the  same  validity  as  if  the  names  of  the  officers 
signing  and  countersigning  the  same  had  been  fully  inserted  in  such 
record. 1     (See  §§  2469,  2470.) 

Copies  of  record  of  Patent-Office. — Sec.  892.  Written  or 
printed  copies  of  any  records,  books,  papers  or  drawings  belonging 
to  the  Pa  tent- Office,  and  of  letters  patent,  authenticated  by  the  seal 
and  certified  by  the  Commissioner  or  acting  Commissioner  thereof, 
shall  be  evidence  in  all  cases  wherein  the  originals  could  be  evi- 
dence ;  and  any  person  making  application  therefor  and  paying  the 
fee  required  by  law  shall  have  certified  copies  thereof.^ 

Copies  of  foreign  letters  patent, — Sec.  893.  Copies  of  the 
specifications  and  drawings  of  foreign  letters  patent,  certified  as 
provided  in  the  next  preceding  section,  shall  be  prima  facie  evi- 
dence of  the  fact  of  the  granting  of  such  letters  patent  and  of  the 
date  and  contents  thereof. 

Copies  of  specifications  and  drawings  certified  by  Com- 
missioner of  Patents. — Sec.  894.  The  printed  copies  of  specifi- 
cations and  drawings  of  patents  which  the  Commissioner  of  Patents 
is  authorized  to  print  for  gratuitous  distribution  and  to  deposit  in 

'This    section    does    not   dispense  Patents  are  public  records,  and  con- 

with  the  signintf  and  countersigning  sequently  all  persons  have  a  right  to 

of  a  patent  for  lands  ;  as  this  must  be  obtain    copies    of    them.     As    these 

signed  by  the  President  and  counter-  records  are  in  the  care  and  custody  of 

signed    by  the  recorder  :      McGarra-  the  Commissioner  of  Patents,  it  is  his 

ban  V.  Mining  Co.,  96  U.  S.  316.  See  duty  to  give  authenticated  copies  of 

also    Hanrick    v.    Barton,     16   Wall,  the  same  to  any  person  vrho  shall  de- 

166.  mand  it  and  payor  tender  the  fees 

A  copy  of  a  plot  and  description,  therefor,  as  soon  as  he  can  convenient- 
duly  authenticated  by  a  certificate  of  ly ;  and  a  failure  to  do  so  sulyects  the 
the  Commissioner  of  the  Land-Office  Commissioner  to  an  action  for  dam- 
under  his  seal  of  office,  is  competent  ages  sustained  thereby.  But  a  de- 
evidence  :  Harris  r.  Barnett,  4  Black  mand  accompanied  by  insolence, 
369.  rudeness  and  insult  is  not  a  legal  de- 

^  Under  this  section  a  transcript  of  mand:    Bayden    v.  Burke,    14    How. 

certain  documents  on  file  in  the  Patent-  575.      See  also  Davis  v.  Grey,  17  Oh. 

Office  is  competent  evidence,  although  St.  335  ;  Sherman  y.  Champlain  Co., 

it  does  not  purport  to  be  a  copy  of  the  31  Vt.  162;  Stone  v.  Palmer,  28  Mo. 

whole:    Toohey   v.  Harding,    1    Fed.  539  ;  Stoner  w.  Ellis,  6  Ind.  152  ;  Bul- 

llep.  174.  lock  V.  Wallingford,  55  N.  H.  619. 


490  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

the  capitals  of  the  states  and  territories  and  in  the  clerks'  offices 
of  the  district  courts  shall,  when  certified  by  him  and  authenticated 
by  the  seal  of  his  office,  be  received  in  all  courts  as  evidence  of  all 
matters  therein  contained. 

Extracts  of  journals  of  Congress.— /Sec.  895.  Extracts  from 
the  journals  of  the  Senate  or  of  the  House  of  Representatives,  and 
of  the  executive  journal  of  the  Senate  when  the  injunction  of 
secrecy  is  removed,  certified  by  the  Secretary  of  the  Senate  or  by 
the  Clerk  of  the  House  of  Representatives,  shall  be  admitted  as 
evidence  in  the  courts  of  the  United  States,  and  shall  have  the 
same  force  and  effect  as  the  originals  would  have  if  produced  and 
authenticated  in  court. 

Copies  of  records  in  office  of  United  States  consul. — Sec. 
896.  Copies  of  all  official  documents  and  papers  in  the  office  of  any 
consul,  vice-consul  or  commercial  agent  of  the  United  States,  and 
of  all  official  entries  in  the  books  or  records  of  any  such  office, 
certified  under  the  hand  and  seal  of  such  officer,  shall  be  admitted 
in  evidence  in  the  courts  of  the  United  States.^     (See  §  1707.) 

Transcripts  certified  by  the  clerks  of  district  courts  in 
Texas,  Florida,  Wisconsin  and  other  states. — Sec.  897.  The 
transcripts  into  new  books  made  by  the  clerks  of  the  district  courts 
in  the  several  districts  of  Texas,  Florida,  Wisconsin,  Minnesota, 
Iowa  and  Kansas,  in  pursuance  of  the  act  of  June  27,  1864,  chap- 
ter 165,  from  the  record  and  journals  transferred  by  them  respec- 
tively, under  the  same  act,  to  the  clerks  of  the  circuit  courts  in 
said  districts,  when  certified  by  the  clerks  respectively  making  the 
same  to  be  full  and  true  copies  from  the  original  books,  shall  have 
the  same  force  and  effect  as  records  as  the  originals.     And  the  cer- 

^  The  certificate  of  a  consul  is  not  367.  But  a  consul's  certificate  is  not 
evidence  of  any  matter  not  within  the  competent  evidence  to  prove  acts  that 
provisions  of  this  section,  as  its  pro-  are  not  his  official  acts  and  of  which 
visions  are  in  derojjation  of  the  com-  he  has  no  personal  knowledge  : 
mon  law  rules  of  evidence  and  there-  Brown  v.  The  Independence,  Crabbe 
fore  must  be  strictly  construed:  Levy  54  ;  or  to  prove  the  facts  to  justify  an 
V.  Burley,  2  Sum.  355.  But  the  cer-  imprisonment  of  a  seaman  by  a  mas- 
tificate  of  a  consul  is  competent  to  ter  in  a  foreijfn  port :  Johnson  v.  The 
prove  his  official  acts:  Brown  w.  The  Coriolanus,  Crabbe  239;  or  the  re- 
Independence,  Crabbe  54 ;  and  that  a  fusal  of  a  master  of  a  vessel  to  de- 
ship's  papers  were  lodged  with  him  :  posit  the  register  of  the  departure  or 
United  States  v.  Mitchell,  2  Wash,  arrival  of  a  vessel  :  Levy  y.  Burley,  2 
478  ;  and  that  a  seaman  was  dis-  Sura.  355 ;  or  that  a  paper  is  a  true 
charged  in  a  foreign  port  by  his  own  copy  of  a  foreign  statute  :  Church  v. 
consent :  Lamb  v.  Briard,   Abb.  Ad.  Hubert,  2  Cr.  187. 


EVIDENCE.  491 

tificates  of  the  clerks  of  said  circuit  courts  respectively  of  tran- 
scripts of  any  of  the  books  or  papers  so  transferred  to  them,  shall 
be  received  in  evidence  with  the  like  effect  as  if  made  by  the  clerk 
of  the  court  in  which  the  proceedings  were  had. 

Tkanscribed  records  certified  by  clerks  in  North  Caro- 
lina.— Sec.  898.  The  transcripts  into  new  books  made  by  the  clerks 
of  the  circuit  and  district  courts  for  the  western  district  of  North 
Carolina,  in  pursuance  of  the  act  of  June  4,  1872,  chapter  282,  when 
certified  by  the  clerks  respectively  making  the  same  to  be  full  and 
true  copies  from  the  original  books,  shall  have  the  same  force  and 
effects  as  records  as  the  originals.  And  the  certificates  of  the  clerks 
of  said  circuit  and  district  courts  respectively,  of  transcripts  of  any 
of  the  said  transcribed  records,  shall  also  be  received  in  evidence 
with  the  like  effect  as  if  made  by  the  proper  clerk  from  the  orig- 
inals from  which  such  records  were  transcribed. 

When  original  records  are  lost  or  destroyed. — Sec.  899. 
When  the  record  of  any  judgment,  decree. or  other  proceedings  of 
any  court  of  the  United  States  is  lost  or  destroyed,  any  party  or 
person  interested  therein  may,  on  application  to  such  court  and  on 
showing  to  its  satisfaction  that  the  same  was  lost  or  destroyed 
without  his  fault,  obtain  from  it  an  order  authorizing  such  defect 
to  be  supplied  by  a  duly  certified  copy  of  the  original  record, 
where  the  same  can  be  obtained;  and  such  certified  copy  shall 
thereafter  have,  in  all  respects,,  the  same  effect  as  the  original 
record  would  have  had. 

Same  subject. — Sec.  900.  When  any  such  record  is  lost  or 
destroyed,  and  the  defect  cannot  be  supplied  as  provided  in  the  pre- 
ceding section,  any  party  or  person  interested  therein  may  make  a 
written  application  to  the  court  to  which  the  record  belonged,  veri- 
fied by  affidavit,  showing  such  loss  or  destruction  ;  that  the  same 
occurred  without  his  fault  or  neglect ;  that  certified  copies  of  such 
record  cannot  be  obtained  by  him  ;  and  showing  also  the  substance 
of  the  record  so  lost  or  destroyed,  and  that  the  loss  or  destruction 
thereof,  unless  supplied,  will  or  may  result  in  damage  to  him. 
The  court  shall  cause  said  application  to  be  entered  of  record,  and 
a  copy  of  it  shall  be  served  personally  upon  every  person  interested 
therein,  together  with  written  notice  that  on  a  day  therein  stated, 
which  shall  not  be  less  than  sixty  days  after  such  service,  said  ap- 
plication will  be  heard;  and  if,  upon  such  hearing,  the   court  is 


492  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

satisfied  that  the  statements  contained  in  the  application  are  true, 
it  shall  make  and  cause  to  be  entered  of  record  an  order  reciting 
the  substance  and  effect  of  said  lost  or  destroyed  record.  Said 
order  shall  have  the  same  effect,  so  far  as  concerns  the  party  or 
person  making  such  application  and  the  persons  served  as  above 
provided,  but  subject  to  intervening  rights,  which  the  original 
record  would  have  had  if  the  same  had  not  be  lost  or  destroyed. 

Same  subject. — Sec.  901.  When  any  cause  has  been  removed 
to  the  Supreme  Court,  and  the  original  record  thereof  is  afterward 
lost,  a  duly  certified  copy  of  the  record  remaining  in  said  court  may 
be  filed  in  the  court  from  which  the  cause  was  removed,  on  motion 
of  any  party  or  person  claiming  to  be  interested  therein;  and  the 
copy  so  filed  shall  have  the  same  effect  as  the  original  record  would 
have  had  if  the  same  had  not  been  lost  or  destroyed. 

Same  subject. — Sec.  902  (as  amended  by  act  of  January  31, 
1879,  ch.  89,  §  1,  20  Stat.  277).  In  any  proceedings  in  conformity 
with  law  to  restore  the  records  of  any  court  of  the  United  States 
which  have  been  or  may  he  hereafter  lost  or  destroyed,  the  notice 
required  may  be  served  on  any  non-resident  of  the  district  in  which 
such  court  is  held  anywhere  within  the  jurisdiction  of  the  United 
States  or  in  any  foreign  country  ;  the  proof  of  service  of  such  notice, 
if  made  in  a  foreign  country,  to  be  certified  by  a  minister  or  consul 
of  the  United  States  in  such  country,  under  his  official  seal. 

Records  in  case  of  loss. — Sec.  903  (as  amended  by  act  of 
January  31,  1879,  ch.  39,  §  2,  20  Stat.  277).  A  certified  copy 
of  the  official  return,  or  any  other  official  paper  of  the  United  States 
attorney,  marshal  or  clerk  or  other  certifying  or  recording  officer 
of  any  court  of  the  United  States,  made  in  pursuance  of  law,  and 
on  file  in  any  department  of  the  government,  relating  to  any  cause 
or  matter  to  which  the  United  States  was  a  party  in  any  such 
court,  the  record  of  which  has  been  or  may  be  lost  or  destroyed, 
may  be  filed  in  the  court  to  which  it  appertains,  and  shall  have  the 
same  force  and  effect  as  if  it  were  an  original  report,  return, 
paper  or  other  document  made  to  or  filed  in  such  court:  and  in  any 
case  in  which  the  names  of  the  parties  and  the  date  and  amount  of 
judgment  or  decree  shall  appear  from  such  return,  paper  or  docu- 
ment, it  shall  be  lawful  for  the  court  in  which  they  are  filed  to  issue 
the  proper  process  to  enforce  such  decree  or  judgment,  in  the  same 
manner  as  if  the  original  record  remained  in  the  said  court.     And 


EVIDENCE.  493 

in  all  cases  -where  any  of  the  files,  papers  or  records  of  any  court 
of  the  United  States  have  been  or  shall  be  lost  or  destroyed,  the 
files,  records  and  papers  which,  pursuant  to  law,  may  have  been  or 
may  be  restored  or  supplied  in  place  of  such  records,  files  and 
papers,  shall  have  the  same  force  and  effect,  to  all  intents  and  pur- 
poses, as  the  original  thereof  would  have  been  entitled  to. 

Sec.  904  (as  amended  by  act  of  January  31,  1879,  ch.  39,  §  3, 
20  Stat.  278).  That  whenever  any  of  the  records  or  files  in  which 
the  United  States  are  interested  in  any  court  of  the  United 
States  have  been  or  may  be  lost  or  destroyed,  it  shall  be  the  duty 
of  the  attorney  of  the  United  States  for  the  district  or  court  to 
which  such  files  and  records  belong,  so  far  as  the  judges  of  such 
courts  respectively  shall  deem  it  essential  to  the  interests  of  the 
United  States  that  such  records  and  files  be  restored  or  supplied, 
to  take  such  steps,  under  the  direction  of  said  judges,  as  may  be 
necessary  to  effect  such  restoration  or  substitution,  including  such 
dockets,  indices  and  other  books  and  papers  as  said  judges  shall 
think  proper.  Said  judges  may  direct  the  performance,  by  the 
clerks  of  said  courts  respectively  and  by  the  United  States  attor- 
neys, of  any  duties  incident  thereto ;  and  said  clerks  and  attorneys 
shall  be  allowed  such  compensation  for  services  in  the  matter  and 
for  lawful  disbursements  as  may  be  approved  by  the  Attorney- 
General  of  the  United  States,  upon  a  certificate  by  the  judges  of 
said  courts  stating  that  such  claim  for  services  and  disbursements 
is  just  and  reasonable;  and  the  sum  so  allowed  shall  be  paid  out  of 
the  judiciary  fund. 

Authentication  of  legislative  proceedings  and  proof 
OF  judicial  proceedings. — Sec.  905.  The  acts  of  the  legis- 
lature of  any  state  or  territory,  or  of  any  country  subject  to 
the  jurisdiction  of  the  United  States,  shall  be  authenticated  by 
having  the  seals  of  such  state,  territory  or  country  affixed 
thereto.  The  records  and  judicial  proceedings  of  the  courts  of 
any  state  or  territor}^,  or  of  any  such  country,  shall  be  proved 
or  admitted  in  any  other  court  within  the  United  States,  by  the 
attestation  of  the  clerk,  and  the  seal  of  the  court  annexed,  if 
there  be  a  seal,  together  with  a  certificate  of  the  judge,  chief  jus- 
tice or  presiding  magistrate,  that  the  said  attestation  is  in  due  form. 
And  the  said  records  and  judicial  proceedings,  so  authenticated, 
shall  have  such  faith  and  credit  given  to  them  in  every  court  within 


4D4 


FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 


the  United  States  as  they  have  by  law  or  usage  in  the  courts  of  the 
state  from  which  they  are  taken. ^ 


^  Acts  of  the  legislature  of  any 

state,  territory  or   country. the 

mode  of  authentication  prescribed 
by  this  section  is  not  exclusive  of 
any  which  the  states  may  adopt. 
A  state  may  provide  for  the  au- 
thentication of  the  records  of  an- 
other state,  and  require  less  proof 
than  prescribed  by  this  section : 
Kingman  v,  Cowles,  103  Mass.  283; 
Latterett  v.  Cook,  1  la.  ]  ;  Parker  v. 
Williams,  7  Cal.  247  ;  Ordway  v.  Con- 
roe,  4  Wis.  45  ;  Lothrop  v.  Blake, 
3  Penn.  483  ;  Goodwvn  v.  Goodvs^yn, 
25  Ga.  203;  Kean  v.  Rice,  12  S.  &  R. 
203. 

Printed  copies  of  statutes  v^ith  in- 
terlineatfons  may  be  used  if  duly  au- 
thenticated :  United  States  v.  Amedy, 
1 1  Wh.  3'J2  ;  and  it  seems  that  an  ex- 
emplification of  an  act  of  the  legisla- 
ture under  the  seal  of  the  state  is 
suflBcient  without  an  attestation  by 
any  state  officer :  Id.  ;  United  States 
V.  Johns,  4  Dall.  412  ;  1  Wash.  363  ; 
Grant  v.  Henry  Clay  Coal  Co.,  80 
Penn.  208. 

But  a  pamphlet  with  no  seal  at- 
tached to  it  is  not  competent  evidence 
of  the  law  of  another  state  :  Craig  v. 
Brown,  I  Pet.  C.  C.  352. 

But  the  federal  courts  will  take  no- 
tice of  the  public  laws  of  the  states  : 
Owing  V.  Hull,  y  Pet.  607  ;  McNiel  v. 
Holbrook,  12  Pet.  84;  Mewster  v. 
Spalding,  6  McLean  24 ;  Jones  v. 
Hayes,  4  McLean  521  ;  Drawbridge 
Co.  V.  Shepherd,  20  How.  227  ;  Har- 
pending  v.  Reformed  Dutch  Church, 
16  Pet.  455. 

The  seal.  —  A  seal,  within  the 
meaning  of  the  statute,  is  an  impres- 
sion upon  wax,  wafer  or  some  other 
tenacious  substance,  and  an  impres- 
sion upon  the  paper  only  is  not  a 
seal :  Coit  v.  Millikin,  1  Den.  376. 
If  there  is  no  seal  attached  to  an  ex- 
emplitied  record,  nor  certificate  that 
the  court  has  no  seal,  it  is  not  com- 
petent evidence :  McFarlane  v.  Har- 
rington, 2  Bay  551 ;  Allen  v.  Thax- 
ter,  1  Blackf.  399  ;  but  a  transcript 
is  admissible,  though  the  clerk  cer- 
tifies that  he  affixes  his  seal  of  office 


instead  of  the  seal  of  the  court:  Mc- 
Lean I'.  Winchester,  17  Mo.  49  ;  Cof- 
fie  V.  Neely,  2  Heisk.  304 ;  Clark  v. 
Depew,  25  Penn.  409  ;  and  if  the 
clerk  affixes  his  private  seal  and  cer- 
tifies the  court  has  no  seal,  the  pri- 
vate seal  will  not  vitiate  the  certifi- 
cate :  Flourenoy  v.  Duke,  2  Brev. 
256  ;  Strade  v.  Churchill,  2  Litt.  75. 

The  fact  that  the  court  whose  rec- 
ord is  certified  has  no  seal  should  be 
shown  either  in  the  certificate  of  the 
clerk  or  the  judge,  and  if  the  attesta- 
tion of  the  clerk  recites  that  there  is 
no  seal,  the  certificate  of  the  judge 
that  the  attestation  is  in  due  form  is 
sufficient  :  Simons  v.  Cook,  29  la. 
324;  Craig  v.  Brown,  1  Pet.  C.  C. 
352. 

Records— APPLICATION  op  statute. 
— The  statute  has  no  application  to 
the  records  of  the  federal  courts,  but 
is  limited  to  the  records  of  the  courts 
of  any  state  or  territory  or  country 
subject  to  the  jurisdiction  of  the 
United  States  :  Mason  v.  Laurason, 
1  Cr.  C.  C.  190;  Dean  v.  Chapin,  22 
Mich.  275  ;  Adams  v.  Way,  33  Conn. 
419;  Williams  v.  Wilkes,  14  Penn. 
228  ;  Adams  v.  Lesher,  2  Blackf. 
241  ;  Dorsey  v.  Maury,  18  Miss.  298  ; 
Steere  v.  Tenney,  50  N.  H.  461. 

The  statute  has  application  only  to 
courts  of  record;  courts  of  justices 
of  the  peace  are  not  generally  courts 
of  record,  but  may  be  so  under  local 
statutes.  If  they  are  made  courts  of 
record  by  statute,  the  statute  should 
be  produced  and  proved,  or  the  cer- 
tified recoi'd  of  his  court  will  not  be 
competent  evidence  :  Thomas  v.  Rob- 
inson, 3  Wend.  267  ;    Kean  v.  Rice, 

12  S.  &  R.  203;  Gay  v.  Lloyd,  1 
Greene  (la.)  78;    Pelton  v.   Platner, 

13  Ohio  209;  Draggoo  v.  Graham,  9 
Ind.  212;  Silver  Lake  Bk.  v.  Hard- 
ing, 5  Ohio  545  ;  Warren  v.  Flagg, 
19  Mass.  448;  Ault  v.  Zehering,  38 
Ind.  429. 

If  a  justice  holds  a  court  of  record 
he  is  competent  to  certify  a  record  of 
his  court,  although  he  may  have  no 
clerk  or  seal,  and  is  not  only  the  pre- 
siding magistrate  but  the  clerk.     In 


EVIDENCE. 


495 


Proofs  of  records  in  offices  not  appertaining  to  courts. 
-Sec.  906.  All  records  and  exemplifications  of  books,  which  may 


such  a  case  he  may  certify  that  he  is 
the  presiding  magistrate  and  clerk 
and  that  he  has  no  seal,  and  that  the 
attestation  is  in  due  form,  and  sub- 
scribe it  as  justice  of  the  peace:  Bis- 
sel  V.  Edwards,  5  Day  363  ;  Blodget 
V.  Jordan,  6  Vt.  580  ;  Brown  v.  Ed- 
son,  23  Vt.  435  ;  Starkweather  v. 
Loomis,  2  Vt.  573  ;  Scott  v.  Cleve- 
land, 3  Mon.  62. 

Competent  evidence  in  the  fed- 
eral COURTS. — The  records  and  pro- 
ceedings of  the  state  courts,  duly  au- 
thenticated, are  competent  evidence 
in  all  federal  courts :  Mills  v.  Dur- 
yee,  7  Cr.  481  ;  Galpin  v.  Page,  8 
Saw.  93 ;  United  States  v.  Biebusch, 
1  Fed.  Rep.  213;  Pennoyer  d.  Neff, 
95  U.  S.  714  ;  and  the  transcript  of  a 
state  court,  properly  certified  by  the 
clerk  under  the  seal  of  the  court,  is 
admissible  in  a  federal  court  sitting 
in  the  same  state  without  a  certificate 
of  the  judge  that  it  is  in  due  form  : 
Mewster  v.  Spalding,  6  McLean  24. 
The  provision  is  also  applicable  to 
the  federal  courts  in  the  District  of 
Columbik  :  Mills  v.  Duryee,  7  Cr. 
481. 

Records  and  proceedings  that 
MAY  BE  AUTHENTICATED. — If  a  record 
purports  to  be  a  confession  of  a  judg- 
ment before  the  clerk  of  a  state  court, 
it  is  within  the  provision  of  this  sec- 
tion :  Sipes  V.  Whitney,  30  Ohio  St. 
69  ;  Randolph  v.  Kesler,  21  Mo.  557  ; 
Coleman  v.  Waters,  12  W.  Va.  278. 

The  decree  of  a  court  of  chancery  : 
Patrick  v.  Gibbs,  17  Tex.  275;  or  a 
judgment  to  enforce  a  vendor's  lien: 
Seaborn  v.  Henry,  30  Ark.  409  ;  or 
for  the  maintenance  of  a  bastard 
child:  State  v.  Helmer,  21  la.  370; 
or  on  a  bond  of  recognizance,  Spen- 
cer V.  Brockway,  1  Ohio  260 ;  or  for  a 
penalty  :  Healy  v.  Root,  28  Mass.  389, 
may  be  certified  under  the  provisions 
of  this  statute.  So  may  the  proceeds 
of  probate  courts:  First  Nat.  Bk.  u. 
Kidd,  20  Min.  234;  Bright  v.  White, 
8  Mo.  421  ;  Ilaile  v.  Hill,  13  Mo.  612; 
Hauze  v.  Hauze,  16  Tex.  598;  Mel- 
vin  V.  Lyons,  18  Miss.  78  ;  Slack  v. 
Walcott,  3  Mass.  508  ;  Case  i'.  McGee, 


8  Md.  9;  Doe  v.  Doe,  31  Ga.  593; 
Lee  V.  Hamilton,  3  Ala.  529 ;  Robert- 
son V.  Barbour,  6  Mon.  523  ;  but  un- 
less a  guardian's  bond  is  a  matter  of 
record  in  the  probate  court,  it  cannot 
be  authenticated  so  as  to  be  evidence 
under  this  section :  Carlisle  v.  Tuttle, 
30  Ala.  613.  See  also  Martin  v.  Mar- 
tin, 22  Ala.  86 ;  Russel  v.  Kearney, 
27  Geo.  96  ;  Warren  v.  Wade,  7  Jones 
(N.  C.)  494;  Pickett  v.  Bates,  3  La. 
An.  627. 

The  decision  of  a  commissioner  is 
not  a  judgment  of  a  court,  although 
he  is  an  oiEcer  of  it :  Taylor  v.  Bar- 
ron, 30  N.  H.  78  ;  but  if  his  decision 
is  accepted  and  recorded  by  the  court 
as  its  judgment,  it  may  be  authenti- 
cated under  this  statute :  Taylor  v. 
Barron,  35  N.  H.  484. 

The  clerk's  certificate — If  the 
record  is  not  properly  attested  and 
certified  it  cannot  be  used  as  evidence  : 
Craig  V.  Brown,  1  Pet.  C.  C.  352;  Bis- 
sel  V.  Edwards,  5  Day  363  ;  Barrow  v. 
Steel,  65  Mo.  611. 

The  statute  does  not  prescribe  the 
form  of  the  attestation  or  certificate, 
but  the  form  is  immaterial  where 
there  is  a  judge's  certificate:  Horner 
V.  Spilma'n,  78  111.  206;  White  v. 
Strother,  11  Ala.  720 ;  Thompson  v. 
Manrow,  1  Cal.  428. 

The  law  does  not  require  that  the 
clerk  shall  certify  the  transcript  as  a 
full  one  of  the  whole  proceedings, 
and  if  the  certificate  states  that  the 
transcript  is  truly  copied  from  the 
record  of  the  proceedings  of  the  court, 
when  it  appears  to  be  a  complete 
record  of  a  suit  from  the  commence- 
ment to  the  termination  of  the  suit,  it 
will  be  sufficient:  Mudd  v.  Beaa- 
champ,  Litt.  Sel.  Cas.  142 ;  Keber  v. 
Wright,  68  Penn.  471  ;  Clark  v.  De- 
pew,  25  Penn.  409.  And  the  truth 
of  the  matters  certified  cannot  be  con- 
tradicted :  McCormic  v.  Deaver,  22 
Md.  187. 

The  judge's  certificate. — It  is 
necessary  that  there  be  a  certificate 
of  the  presiding  judge  that  the  attesta- 
tion is  in  due  form,  and  if  there  is  no 
such  certificate  the  exemplification  is 


496 


FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 


be  kept  in  any  public  oflBce  of  any  state  or  territory,  or  of  any 
country  subject  to  the  jurisdiction  of  the  United  States,  not  apper- 


not  competent  evidence.  The  mode 
of  attestation  of  records  and  proceed- 
ings of  courts  in  the  various  states  to 
make  them  competent  evidence  is 
usually  prescribed  by  the  statutes  of 
the  several  states,  and  the  section 
under  consideration  requires  the  mode 
of  attestation  for  this  purpose  to  con- 
form to  that  used  in  the  state  where 
the  court  was  held  and  not  to  the 
forms  used  in  the  state  where  it  is  of- 
fered :  Duncommon  v.  Ilysinger,  14 
111.  14;  Craig  v.  Brown,  1  Pet.  C.  C. 
352;  White  v.  Strother,  11  Ala.  720; 
Thrasher  v.  Ingram,  32  Ala.  645  ; 
Snyder  v.  Wise,  10  Penn.  157;  Ord- 
way  V.  Conroe,  4  Wis.  45  ;  Brackett 
V.  People.  64  111.  170;  Corfield  v.  Cor- 
yell, 4  Wash.  C.  C.  371  ;  Pepin  v. 
Lachenmyer,  45  N.  Y,  27  ;  Hackett  v. 
Bonnell,  16  Wis.  471  ;  Washabaugh 
V.  Entriken,  34  Penn.  74;  Ilutchinsu. 
Gerrish,  52  N.  H.  205  ;  Trigg  v.  Con- 
way, Hem.  538. 

The  certificate  should  show  that  he 
was  the  presiding  judge  of  the  court 
where  the  proceedings  took  place : 
Little  V.  Alison,  8  Geo.  201  ;  Pratt  v. 
King,  1  Ore.  49 ;  Brown  v.  Johnson, 
42. Ala.  208;  Taylor  i).  Kilgore,  33 
Ala.  214  ;  Bennett  v.  Bennett,  1  Deadv 
300;  Erb  v.  Scott,  14  Penn.  20'; 
Hatcher  v.  Rocheleau,  18  N.  Y.  86  ; 
Barlow  v.  Steel,  65  Mo.  611  ;  Thrasher 
V.  Ingram,  32  Ala.  645  ;  Newman  v. 
Goza,  14  La.  An.  642 ;  Haynes  v. 
Cowen,  11  Kans.  637. 

Effect  of  an  authenticated  rec- 
ord  OF    A    JUDGMENT     AS    EVIDENCE. 

If  the  record  of  a  judgment  is  proved 
in .  the  manner  prescribed  by  the 
statute,  the  evidence  is  of  as  high  a 
nature  as  the  inspection  of  the  same 
record  or  as  an  exemplification  of  the 
record  would  be  in  any  other  court  of 
the  same  state :  Mills  v.  Duryee,  7 
Cr.  481  ;  Green  v.  Sarmiento,  3  Wash. 
17;  s.  c,  1  Pet.  C.  C.  74;  Public 
Works  V.  Columbia  College,  17  Wall. 
521  ;  McElmoyle  v.  Cohen,  13  Pet. 
312.  But  if  tiie  judgment  would  not 
be  valid  under  the  laws  of  the  state 
where  it  is  o9"ered  in  evidence,  it  can- 
not be  deemed  valid  unless  it  is  shown 


to  be  so  by  proof  of  the  laws  of  the 
state  where  it  was  rendered  :  Crafts  v. 
Clark,  31  la.  77.  See  also  McFarland 
V.  White,  13  La.  An.  394;  Porchellor 
V.  Bronson,  50  Tex.  555  ;  Newton  v. 
Mutual  Benefit  Life  Ins.  Co.,  22  N. 
Y.  595. 

If  a  judgment  Ity  confession  under 
a  power  of  attorney  may  be  set  aside 
in  the  state  where  it  was  rendered,  it 
may  be  examined  and  annulled  in  an- 
other state  :  Brown  v.  Parker,  28  Wis. 
21.  So  if  a  judgment  would  not  be  a 
bar  to  a  subsequent  action  in  the 
same  state,  it  would  not  be  a  bar  to 
an  action  in  another  state  :  Matoon  v. 
Clapp,  8  Ohio  248. 

If  a  judgment  against  a  corporation 
cannot  be  enforced  against  stockhold- 
ers individually  in  the  state  where  it 
was  rendered,  it  cannot  bind  them  in 
another  state  where  a  judgment  could 
be  so  enforced:  Sumner  v.  Marcy,  3 
W.  &  M.  105.  See  also  Killam  v. 
Toms,  38  Wis.  592  ;  Oldens  v.  Hallett, 
5  N.  J.  466  ;  Sims  t'.  Sims,  75  N.  Y. 
466;  Commonwealth  v.  Gi-een,  17 
Mass.  514. 

Judgments  are  conclusive  between 
the  parties  in  every  state  except  for 
such  causes  as  would  be  sufficient  to 
set  aside  the  judgment  in  the  state 
where  it  was  rendered :  McElmoyle 
V.  Cohen,  13  Pet.  312  ;  Green  v.  Sar- 
miento, 3  Wash.  17  ;  Mills  v.  Duryee, 
7  Cr.  481;  Belton  t'.  Fisher,  44  111. 
32 ;  Wheeler  v.  Eaymond,  8  Cow. 
311  ;  Robert  v.  Hodges,  16  N.  J.  Eq. 
299. 

EfFICACV  OF  A  JUDGMENT  IN  AN- 
OTHER STATE. — A  judgment  in  one 
state  cannot  carry  with  it  into  another 
state  any  efficacy  as  a  judgment  to  be 
enforced  by  execution.  When  duly 
authenticated,  it  is  only  the  eyi- 
dence  of  an  indebtedness  and  the 
ground  for  another  judgment  in  the 
forum  of  another  state,  which  can 
only  be  enforced  by  execution  under 
the  laws  of  the  latter  state :  McEl- 
moyle V.  Cohen,  13  Pet.  312  ;  Beale  v. 
Berryman,  30  N.  J.  216  ;  McLure  v. 
Bencene,  2  Ired.  Eq.  513 ;  Carter  v. 
Bennett,    6    Fla.    214;     Harness    v. 


EVIDENCE. 


497 


taining  to  a  court,  shall   be  proved  or  admitted  in  any  court  or 
oflSce  in  any  other  state  or  territory,  or  in  any  such  country,  by 


Green,  20  Mo.  316  ;  Barrett  v.  Failing, 
3  Fed.  Rep.  471. 

Appeal  or  writ  of  error. — The 
jude:ment  of  the  inferior  court  is 
presumed  to  remain  unreversed  until 
the  contrary  is  shown  :  Schoonmaker 
V.  Lloyd,  9  Rich.  173;  and  the  pend- 
ency of  a  writ  of  error  or  appeal 
where  no  bond  is  given  to  stay  pro- 
ceedings constitutes  no  defence  to  an 
action  on  the  judgment  in  another 
state  :  McJilton  v.  Love,  13  111.  486  •, 
McArthur  v.  Goddin,  12  Bush.  274-, 
DeWolf,  33  Penn.  45.  See  also  Paine 
V.  Schenectady  Ins.  Co.,  11  R.  I.  411  ; 
Bank  v.  Wheeler,  28  Conn.  433. 

Where  a  decree  was  merely  in- 
terlocutory.— If  a  decree  was  merely 
interlocutory  under  the  laws  of  the 
state  where  it  was  rendered,  it  will 
be  so  considered  in  another  state : 
Public  Works  v.  Columbia  College,  17 
Wall.  521  ;  Whitaker  v.  Bramson,  2 
Paine  209.  But  a  judgment  which 
on  its  face  purports  to  be  a  final  judg- 
ment will  in  the  absence  of  evidence 
to  the  contrary  be  treated  as  a  final 
one  in  another  state :  Rowland  v. 
Jarvis,  5  La.  An.  43.  See  also  Law- 
rence V.  Jarvis,  32  111.  125. 

Decrees  in  relation  to  land  in 
another  state. — No  decree  in  one 
state  can  operate  as  a  conveyance  of 
land  in  another^  nor  will  a  convey- 
ance of  a  commissioner  appointed 
under  a  decree  of  a  court  in  one  state 
divest  a  legal  title  to  real  estate  in  an- 
other state :  Watts  v.  Waddle,  1  McLean 
200  ;  s.  c,  6  Pet.  389  ;  Tardy  v.  Mor- 
gan, 3  McLean  358 ;  Burnley  v.  Ste- 
venson, 24  Ohio  St.  474 ;  see  also  Davis 
V.  Headley,  22  N.  J.  115. 

Where  the  court  had  jurisdiction 
OF  a  cause  the  judgment  cannot  be 
impeached  collaterally  for  errors 
and  irregularities. — It  is  a  general 
principle  of  the  law  that  where  a 
court  had  jurisdiction  in  a  cause  both 
of  the  persons  and  the  subject-matter 
a  judgment  rendered  therein  is  con- 
clusive, unless  reversed  or  modified 
on  appeal  or  writ  of  error  ;  and  no 
judgment  can  be  questioned  or  im- 
peached, collaterally,  for  any  errors 

32 


or  irregularities  which  could  have  been 
corrected  on  appeal  or  writ  of  error  : 
Patterson?;.  The  State,  12  Green  (la.) 
492;  State  v.  Helmer,  21  la.  370; 
Henderson  v.  Staniford,  105  Mass.  504. 

Attorney's  ignorance,  negligence 
and  fraud. — Although  a  court  of  eq- 
uity in  one  state  may  grant  relief 
against  a  judgment  entered  in  another 
where  it  is  sought  to  obtain  a  judg- 
ment in  the  former  state  upon  the 
judgment  in  the  latter,  in  all  cases 
where  relief  would  be  granted  in  the 
state  where  the  judgment  was  first  ren- 
dered, still  a  judgment  in  another  state 
cannot  be  impeached  on  the  ground  of 
the  ignorance,  negligence  or  bad  faith 
of  an  attorney :  Amory  v.  Amory,  3 
Biss.  266  ;  Crawford  v.  White,  17  la. 
560  ;  Sipes  v.  Whitney,  30  Ohio  St.  69. 
Nor  can  a  judgment  be  attacked  in  a 
collateral  manner  on  the  ground  that 
it  was  procured  by  fraud,  and  the  issues 
reopened  and  determined  by  the  judg- 
ment and  evidence  on  the  original 
trial :  Field  v.  Saunderson,  34  Mo. 
542  ;  Barnard  v.  Fowler,  119  Mass. 
262 ;  Johnson  v.  Dobbins,  35  Leg. 
Int.  242  ;  Davis  v.  Headley,  22  N.  J. 
Eq.  115  ;  Rogers  v.  Gwinn,  21  la.  38  ; 
Bicknel  v.  Field,  8  Paige  440 ;  Luck- 
enbach  v.  Anderson,  47  Penn.  123. 
But  where  an  attorney  for  the  plaintiS" 
assured  the  defendant  that  nothing 
further  should  be  done  in  the  suit  un- 
til further  notice,  and  the  attorney 
subsequently  proceeded  and  obtained 
judgment  without  notice  to  the  defen- 
dant, this  was  held,  under  the  peculiar 
cii'cumstances  of  the  case,  to  be  such 
a  fraud  as  to  entitle  the  defendant  to 
relief  therefrom  :  Pearce  v.  Olney,  20 
Conn.  544 ;  Ward  v.  Quinlivin,  57 
Mo.  425  ;  see  also  Clay  v.  Clay,  13 
Tex.  195,  where  it  was  held  that  fraud 
in  obtaining  a  judgment  without  the 
credit  of  a  payment  made  during  the 
pendency  of  the  original  suit  might  be 
shown  in  a  suit  on  the  judgment  in 
another  state,  and  that  the  payment 
might  be  there  shown  ;  see  also  Davis 
V.  Smith,  5  Geo.  274 ;  Buford  v.  Bu- 
ford,  4Munf.  241. 

Statpte  of  limitations. — The  uni- 


498 


FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 


the  attestation  of  the  keeper  of  the  said  records  or  hooks,  and  the 
seal  of  his  ofiice  annexed,  if  there  be  a  seal,  together  ■with  a  certif- 


vevsal  doctrine  in  reference  to  the 
laws  of  limitation  applicable  to  judg- 
ments is  that  in  a  suit  on  a  judgment 
the  law  of  limitations  of  the  state 
where  the  suit  is  brought  is  applicable, 
and  not  the  statutes  of  the  state  where 
the  judgmentwas  originally  rendered  : 
McElmoyle  v.  Cohen.  13  Pet.  312; 
Bacon  v.  Howard,  20  How.  22  ;  Bank 
I).  Dal  ton,  9  How.  522 ;  Robinson  v. 
Payton,  4  Tex.  276  ;  Pryor  v.  Moore, 
S  Tex.  250  ;  Kirkman  v.  Hendrick,  8 
Tex.  253  ;  Reid  v.  Boyd,  13  Tex.  241 
Stockwell  V.  Coleman,  10  Ohio  St.  33 
Christmas  v.  Russell,  5  Wall.  290 
Meek  v.  Meek,  45  la.  294. 

Jurisdiction'  of  the  person  nec- 
essary.— There  must  be  some  service 
of  original  process  or  an  appearance, 
and  a  personal  judgment  rendered 
without  either  is  void  in  another  state : 
Warren  Man.  Co.  v.  Etna  Ins.  Co.,  2 
Paine  501;  Westervelt  v.  Lewis,  2 
McLean  511;  De  Arcy  v.  Ketchum, 
11  How.  165;  Jones  v.  Warner,  81 
111.  343  ;  Tait  v.  De  Ende,  18  La.  33  ; 
McLaurens  v.  Monroe,  30  Mo.  462 ; 
Rangley  v.  Webster,  11  N.  11.299; 
Middlesex  Bk.  v.  Butman,  29  Me.  19  ; 
W^oodward  v.  Tremere,  23  Mass.  354 ; 
Bicknell  v.  Field,  8  Paige  440 ;  Jar- 
dine  V.  Richert,  39  N.  J.  165. 

Presumptions  from  recital  in  the 
RECORD. — If  a  record  shows  service, 
this  would  be  at  least  presumptive 
evidence  that  the  service  was  made  in 
accordance  with  the  laws  of  the  state 
where  the  judgment  was  rendered: 
Dunbar  v.  Hallowell,  34  111.  168; 
Trayden  v.  Justis,  24  La.  An.  222; 
Wilson  V.  Jackson.  10  Mo.  329  ;  Dow- 
ner V.  Shaw,  22  N!  H.  277. 

The  RECORD  showing  service  may 
BE  contradicted. — Although  an  ex- 
emplified record  of  a  court  of  another 
state  may  show  that  there  was  per- 
sonal service  of  the  original  process, 
and  this  is  prima  facie  evidence  of 
the  fact  and  of  the  jurisdiction  of  the 
court,  yet  the  defendant  may  contro- 
vert this  fact  and  by  proof  show  that 
there  was  no  such  service :  Knowles 
V.  Gas  Light  Co.,  19  Wall.  58;  s.  c, 
2  DHL  421  ;    Pollard  v.   Baldwin,  22 


la.  328 ;  Lowe  v.  Lowe,  40  la.  220 ; 
Webster  v.  Hunter,  50  la.  215;  Kings- 
bury V.  Yniestra,  59  Ala.  320  ;  Cheen 
V.  Gray,  51  Tex.  112;  Marx  v.  Fore, 
51  Mo.  69  ;  McDermott  v.  Clary,  107 
Mass.  501  ;  Norwood  v.  Cobb,  15  Tex. 
500;  Carleton  v.  Bickford,  79  Mass. 
591  ;  Lincoln  v.  Tower,  2  McLean 
473. 

So  evidence  may  be  introduced  to 
prove  that  a  vessel  was  not  seized 
within  the  county  where  the  judg- 
ment was  rendered,  although  the  cer- 
tified record  states  that  the  seizure 
was  within  the  county  :  Thompson  v. 
Whitman,  18  Wall.  457.  But  the 
presumption  arising  from  a  recital  in 
the  record  that  service  was  made 
within  the  district  cannot  be  overcome 
by  mere  proof  that  the  defendant  was 
not  a  resident  of  the  state:  Kuhn  v. 
McMillen,  3  Dill.  372. 

A  recital  of  an  appearance  may 
BE  CONTROVERTED. — If  a  rccord  shows 
an  appearance  by  the  defendant  it  is 
at  least  prima  facie  evidence  of  the 
fact:  Whittaker  v.  Murray,  15  111. 
293 ;  Reber  v.  Wright,  68  Penn.  471  ; 
Cone  V.  Hooper,  18  Min.  531  ;  Tipton 
V.  Mayfield,  10  La.  189  ;  Edmonds  v. 
Montgomery,  1  la.  143 ;  Cassidy  v. 
Leetch,  53  How.  Pr,  105;  Price  v. 
Ward,  25  N.  J.  225  ;  Kerr  v.  Kerr,  41 
N.  Y.  272 :  Eager  v.  Stover,  59  Mo. 
87  ;  Wilcox  v.  Cassocl,  2  Mich.  165. 

Service  of  original  process  out 
OF  THE  state. — The  jurisdiction  of 
state  courts  is  limited  by  the  bound- 
ary to  the  state,  and  original  process 
issuing  therefrom  can  have  no  force 
or  eifect  without  the  state.  Such 
process  served  without  the  state  can- 
not give  the  state  court  jurisdiction 
of  the  person  of  a  defendant,  and  a 
judgment  in  personam  in  such  a  case 
is  void :  Warren  Man.  Co.  v.  Etna 
Ins.  Co.,  2  Paine  501  ;  Public  Works 
V.  Columbia  College,  17  Wall.  521  ; 
Ewer  V.  Coffin,  55  Mass.  23  ;  Price  v. 
Ilickok,  39  Vt.  292. 

Service  by  publication  ;  and  by 
COPY. — Within  the  limits,  however,  of 
natural  justice  and  fundamental  prin- 
ciples of  right,  a  state  may  prescribe 


EVIDENCE. 


499 


icate  of  the  presiding  justice  of  the  court  of  the  county,  parish  or 
district  in  which  such  office  may  be  kept,  or  of  the  governor  or 


the  mode  of  bringing  its  own  citizens 
before  its  courts,  and  the  judgments 
of  her  courts  entered  on  proceeding 
which  conform. to  the  statutes  in  such 
case  provided  cannot  be  impeached 
in  the  courts  of  another  state.  Thus, 
if  the  statute  of  a  state  permits  a  pub- 
lication of  notice  against  defendants 
residing  out  of  a  state,  and  some  reside 
in  and  some  without  the  state, and  those 
in  the  state  are  personally  served  with 
original  process  and  those  without 
the  state  by  publication,  a  judgment 
would  be  void  in  this  respect  against 
those  defendants  in  the  state  who 
were  personally  served,  but  not  as  a 
personal  judgment  against  the  others  : 
Stockweli  V.  McCracken,  109  Mass. 
84  ;  Knowles  v.  Gas  and  Coke  Co.,  19 
Wall.  58;  Welch  v.  Sykes,  8  111.  197  ; 
Oilman  v.  Lewis,  24  N.  J.  246 ;  De 
Arcy  V.  Ketchum,  11  How.  165;  Hall 
V.  Laming,  91  U.  S.  160;  Green  v. 
Sarmiento,  3  Wash.  17  ;  Christmas  v. 
Russell,  5  Wall.  290  ;  Bissill  v.  Briggs, 
9  Mass.  462 ;  Folger  v.  Ins.  Co.,  99 
Mass.  267  ;  Maxwell  v.  Stewart,  22 
Wall.  77  ;  Woodward  v.  Tremere,  23 
Mass.  354 ;  Reber  v.  Wright,  68  Pa.  47 1. 
Although  a  corporation  is  con- 
sidered a  citizen  of  the  state  where  it 
was  incorporated,  the  statute  of  a 
state  may  provide  for  the  service  of 
original  process  on  it,  by  service  on 
an  agent  or  otBcer  of  the  corporation 
within  the  state  where  the  suit  is 
brought,  and  a  judgment  recovered  on 
such  a  service  would  in  that  respect 
be  binding  in  other  states  :  Lafayette 
Ins.  Co.  V.  French,  18  How.  404  ;  s.  c, 
5  McLean  461  ;  Way  mouth  v.  Rail- 
road Co.,  1  McArthu'r  19  ;  Moulin  v. 
Ins.  Co.,  25  N.  J.  57  ;  Latimer  v.  Un- 
ion Pac.  R.  Co.,  43  Mo.  105. 

Effect  of  a  voluntary  appear- 
ance.— A  voluntary  general  appear- 
ance in  a  suit  is  a  waiver  of  all  defects 
in  the  form  or  service  of  original  pro- 
cess, and  a  judgment  therein  will  be 
valid  in  any  other  state ;  and  all  de- 
fects of  this  kind  would  be  waived  by 
pleading  the  judgment  in  bar  to  an 
action  upon  the  original  contract  or 
other  foundation  of  the  suit:  Hender- 


son V.  Steinford,  105  Mass.  504 ;  Lu- 
cas t\  Bank,  2  Stew.  280;  Shields  ». 
Thomas,  18  Ho.  253  ;  Hill  v.  Menden- 
hall,  21  Wall.  453  ;  Church  v.  Cross- 
man,  49  la.  444  ;  Kimbal  v.  Merrick, 
20  Ark.  12;  Smith  v.  Ross,  7  Mo. 
463 ;  Milne  v.  Van  Buskirk,  9  la. 
558  ;  Wright  v.  Wersingei-,  13  Miss. 
210;  Huston  V.  Dunn,  ^13  Tex.  476. 
See  also  Nations  v.  Johnson,  24  How. 
195 ;  Horton  v.  Critchfield,  18  111.  133. 
In  case  of  foreign  attachment. — 
If  the  defendant  in  a  foreign  attach- 
ment suit  is  not  served  with  original 
process  and  makes  no  voluntary  ap- 
pearance, the  judgment  is  not  con- 
clusive evidence  of  the  debt:  Ricketts 
V.  Henderson,  2  Cr.  C.  C.  157;  Phelps 
V.  Ilolker,  1  Dall.  261  ;  Ewer  v.  Cof- 
fin, 55  Mass.  23  ;  Gilman  v.  Gilman, 
126  Mass.  26;  Jones  v.  Spencer,  15 
Wis.  583;  Pelton  v.  Plainer,  13  Ohio 
209;  Arndt  v.  Arndt,  15  Ohio  33; 
McVicker  v.  Beedy.  31  Me.  314; 
Price  V.  Hekok,  39  Vt.  292  ;  Robins 
V.  Ward,  8  Johns.  86  ;  but  if  the  de- 
fendant voluntarily  appears  in  the 
action  generally  to  defend,  the  judg- 
ment will  be  binding  on  him:  Max- 
well V.  Stewart,  22  Wall.  77  ;  May- 
hew  V.  Thatcher,  6  Wh.  129  ;  if  the 
appearance  is  merely  for  the  purpose 
of  defending  the  property,  it  has  been 
held  that  this  did  not  give  the  court 
jurisdiction  of  the  person  :  Starbuck  v. 
Murray,  5  Wend.  148.  See  also  Fel- 
tus  V.  Starke,  12  La.  An.  798.  And  if 
the  attachment  w^as  valid  in  the  state 
where  the  suit  was  instituted,  a  sale 
of  property  under  a  judgment  ob- 
tained therein  will  pass  a  valid  title 
to  the  property :  Green  v.  Van  Bus- 
kirk, 7  Wall.  139;  s.  c,  2  Keyes  119  ; 
s.  c,  34  Barb.  457  ;  Melhop  v.  Doane, 
31  la.  397. 

Remedies  on  judgments  in  another 
STATE. — The  remedy  on  a  judgment 
rendered  in  another  state  is  by  a  suit 
on  the  judgment,  and  a  resort  to  such 
remedies  as  the  state  where  the  last 
judgment  is  obtained  may  afford. 
The  form  of  the  action  will  of  course 
depend  upon  the  laws  of  the  latter 
state.  No  court  can  give  effect  to  ajudg- 


500 


FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 


secretary  of  state,  the  chancellor  or  keeper  of  the  great  seal,  of 
the  state  or  territory  or  country,  that  the  said  attestation  is  in  due 


nient  of  a  court  of  another  state  in 
any  other  way  ;  nor  can  it  enforce  the 
collateral  remedies  prevailing  in  the 
state  where  the  original  judgment 
was  rendered  :  Dimick  v.  Brooks,  21 
Vt.  5()',t ;  Thorn  v.  Batory,  41  Md. 
593;  Briggs  v.  Campbell,  19  La.  524. 

Interest  and  satisfaction. — The 
rate  of  interest  on  a  judgment  is 
governed  by  the  law  of  the  state 
where  it  was  rendered,  and  not  upon 
the  law  of  another  state  where  it  is 
the  basis  of  a  new  suit :  Clark  v. 
Pratt,  20  Ala.  470  ;  Lewis  v.  Wilder, 
4  La.  An.  574 ;  David  v.  Porter,  52 
la.  254  ;  Hudson  v.  Daily,  13  Ala. 
722;  but  a  new  judgment  in  another 
state  does  not  satisfy  the  original 
one  :  Bates  v.  Lyon,  7  Paige  85  ;  nor 
is  it  a  bar  to  another  action  on  the 
original  one  unless  it  has  been  satis- 
fied :  Weeks  v.  Pearson,  5  N.  H.  324; 
Tarver  v.  Rankin,  3  Fla.  210. 

Decrees  for  divorce. — In  case  of  a 
decree  of  divorce,  if  the  court  had  ju- 
risdiction over  the  parties  under  the 
laws  of  the  state  where  it  was  made, 
it  will  be  deemed  valid  in  other  states 
so  far  as  the  divorce  is  concerned  ;  but 
in  respect  to  collateral  matters,  such 
as  alimony  and  property,  it  is  not  al- 
ways conclusive  of  the  rights  of  par- 
ties in  another  state  :  Cheever  v.  Wil- 
son, 9  AVall.  108  ;  Kinnier  v.  Kinnier, 
45  N.  Y.  535 ;  Harrison  v.  Harrison, 
20  Ala.  629  ;  Barber  v.  Root,  10  Mass. 
260;  Kerr  v.  Kerr,  41  N.  Y.  272; 
Smith  V.  Smith,  79  Mass.  209;  Nicholas 
V.  Nicholas,  25  N.  J.  Eq.  60;  Doughty 
V.  Doughty,  27  N.  J.  Eq.  315;  s.  c, 
28  N.  J.  Eq.  581  ;  Piatt's  Appeal,  80 
Penn.  St.  501  ;  People  v.  Baker,  76 
N.  Y.  78;  Cox  V.  Cox,  19  Ohio  St. 
505  ;  s.  c.  20  Ohio  St.  439  ;  Luth  v. 
Luth,  39  N.  II.  20 ;  Hoffman  v.  Hoff- 
man, 46  N.  Y.  30  ;  Hood  v.  Hood,  93 
Mass.  196;  Ditson  v.  Ditson,  4  R.  I. 
87;  Hunt  v.  Hunt,  72  N.  Y.  2l7 ; 
Lyon  V.  Lyon,  68  Mass.  367  ;  Burlen  v. 
Shannon,  1 15  Mass.  438  ;  State  v.  Arm- 
ington,  25  Min.  29  ;  People  v.  Dawell, 
25  Mich.  247  ;  People  v.  Smith,  20  N. 
Y.  414  ;  Middleworth  v.  McDowell,  49 
Ind.  386. 


Pleadings  in  a  suit  on  a  judgment. 
— The  form  of  the  action  and  the  re- 
quirements of  the  declaration  or  peti- 
tion must,  as  we  have  observed,  con- 
form to  the  practice  of  the  state  where 
the  suit  is  brought.  If  the  judgment 
or  decree  is  conclusive  between  the 
parties  in  the  state  where  it  is  ren- 
dered, it  is,  as  we  have  seen,  conclu- 
sive in  other  states  if  the  court  had 
jurisdiction,  A  plea  therefore  of  nil 
debet  is  not  a  good  plea  to  a  declara- 
tion on  a  valid  judgment  of  another 
state  ;  the  only  plea  which  can  be  en- 
tered is  nul  tiel  record  :  Maxwell  v. 
Stewart,  22  Wall.  77  ;  Mills  v.  Duryee, 
7  Cr.  481  ;  Hampton  v.  McConnel,  3 
AVh.  234 ;  Armstrong  v.  Carson,  2 
Dall.  302  ;  Jacquette  v.  Hugunon,  2 
McLean  129  ;  Lawrence  v.  Jarvis,  32 
111.  304 ;  Buchanan  v.  Port,  5  Ind. 
264;  Hensley  v.  Force,  12  Ark.  756. 
And  the  same  rule  applies  to  a  judg- 
ment rendered  by  a  court  in  the  Dis- 
trict of  Columbia  :  Hughes  v.  Davis,  8 
Md.  271  ;  Duval  v.  Pearson,  18  Md. 
502. 

But  if  the  invalidity  of  the  judg- 
ment appears  upon  the  record,  or  if 
the  defendant  desires  to  take  issue  on 
the  jurisdiction  of  the  court  to  render 
the  judgment,  then  the  plea  ni7  debet  or 
some  equivalent  plea  under  the  stat- 
utes of  the  state  is  proper,  as  it  pre- 
sents the  question  of  jurisdiction  for 
inquiry  ;  and  the  defendant  may  show 
that  the  court  in  which  the  judgment 
was  rendered  had  no  jurisdiction  of 
the  subject-matter  of  the  suit  or  of 
the  person  of  the  defendant.  War- 
ren Mfg.  Co.  V.  Etna  Ins.  Co.,  2 
Paine  501  ;  Warren  v.  Flagg,  19 
Mass.  448;  Beale  v.  Berryman,  30 
N.  J.  216;  Foster  v.  Glazner,  27  Ala. 
391 ;  Lawrence  v.  Jarvis,  32  111.  304; 
Starbach  v.  Murray,  5  Wend.  148 ; 
Price  V.  Ward,  25  N.  J.  225  ;  Shufeld 
V.  Buckley,  45  111.  223  ;  Warren  v. 
McCarthy,  25  111.  95. 

Such  a  plea  must  necessarily  admit 
that  the  record  exists  as  a  matter  of 
fact,  and  seek  relief  by  avoiding  its 
effect ;  and  should  therefore  be  form- 
ally pleaded  in  order  that  the  facts 


EVIDENCE. 


501 


form,  and  by  the  proper  oflficers.  If  the  said  certificate  is  given 
by  the  presiding  justice  of  the  court,  it  shall  be  further  authen- 
ticated by  the  clerk  or  prothonotary  of  the  said  court,  Avho  shall 
certify,  under  his  hand  and  the  seal  of  his  office,  that  the  said  pre- 
siding justice  is  duly  commissioned  and  qualified ;  or,  if  given  by 
such  governor,  secretary,  chancellor  or  keeper  of  the  great  seal,  it 
shall  be  under  the  great  seal  of  the  state,  territory  or  country 
aforesaid  in  which  it  is  made.  And  the  said  records  and  exempli- 
fications, so  authenticated,  shall  have  such  faith  and  credit  given  to 
them  in  every  court  and  office  within  the  United  States  as  they 
have  by  law  or  usage  in  the  courts  or  offices  of  the  state,  territory 
or  country,  as  aforesaid,  from  which  they  are  taken. ^ 


upon  which  it  is  predicated  may 
be  admitted  or  put  in  issue : 
Hill  V.  Mendenhall,  21  Wall.  453; 
Miller  v.  Pennington,  2  Stew.  399  ; 
Moulin  V.  Insurance  Co.,  24  N.  J. 
222;  Lackland  v.  Pritchett,  12  Mo. 
484.  A  plea  of  payment  would  al- 
ways be  good;  Hutchinson  v.  Patrick, 
3  Mo.  65  ;  so  of  a  plea  that  the  plain- 
tiff has  executed  to  the  defendant  a 
release  from  the  judgment;  Eaton  v. 
Hasty,  6  Neb.  419. 

^  What  RECORDS  may  be  certified 
AS  EVIDENCE. — The  language  "  records 
and  exemplification  of  books  which 
may  be  kept  in  any  public  office  of  any 
state  or  territory,  or  of  any  country 
subject  to  the  jurisdiction  of  the 
United  States,  not  appertaining  to  a 
court,"  means  the  public  writings  rec- 
ognized by  the  common  law  as  invested 
with  an  official  character,  but  which 
are  not  of  the  nature  of  j  udicial  records 
or  judgments,  and  are  therefore  sus- 
ceptible of  proof  by  secondary  evi- 
dence. Of  this  character  are  the  acts 
and  orders  of  the  executive  officer  of 
the  state ;  the  acts  of  legislative  bodies ; 
the  journals  of  either  branch  of  the 
legislature  ;  registers  kept  in  public 
offices;  books  which  contain  the  offi- 
cial proceedings  of  municipal  corpo- 
rations; parish  registers  and  the  like: 
Snyder  v.  Wise,  10  Penn.  St.  157. 
Thus,  an  exemplified  copy  of  a  mar- 
riage license,  certified  and  attested  by 
the  proper  public  officer :  King  v.  Dale, 
2  111.  513  ;  or  of  the  record  of  a  patent 


to  hold  an  office :  Henthorn  v.  Shep- 
herd, 1  Blackf.  157  ;  or  of  a  recorded 
guardian's  bond,  unless  it  is  a  matter 
of  record  in  the  probate  court :  Car- 
lisle V.  Tuttle,  30  Ala.  613,  may  be 
certified  under  this  provision. 

A  deed  or  other  instrument  duly 
recorded  under  the  laws  of  a  state 
may  be  thus  attested  by  the  keeper  of 
such  record  with  the  seal  of  his  office 
annexed,  if  there  is  a  further  certifi- 
cate of  the  presiding  justice  of  the 
court  of  the  county  or  district  in  which 
such  office  is  kept  that  such  attesta- 
tion is  in  due  form  and  by  the  proper 
officer,  and  this  certificate  is  further 
authenticated  by  the  clerk  or  pro- 
thonotary of  the  court  under  his  hand 
and  se^l  of  office,  that  the  justice  who 
certifies  is  duly  commissioned  and 
qualified  ;  and  provided  further  that 
the  effect  of  such  a  record  as  evidence 
be  shown  in  the  state  where  it  is  re- 
corded :  Drummond  v.  Magruder,  9 
Ct.  122  ;  Dickerson  v.  Grissora,  4  La. 
An.  538 ;  Condit  v.  Blackwell,  19  N. 
J.  Eq.  193;  Powell  w.  Knox,  16  Ala. 
364  ;  Key  v.  Vaughn,  15  Ala.  497  ; 
Kidd  V.  Manly,  28  Miss.  156  ;  Brown 
V.  Edson,  23  Vt.  435  ;  Pennel  v.  Wey- 
ant,  2  Har.  501  ;  Paca  v.  Dutton,  4 
Mo.  371  ;  Smith  v.  Redden,  5  Har.  321  ; 
but  a  secretary  of  state  need  not  cer- 
tify that  the  attestation  of  articles  of 
incorporation  is  in  due  form  of  law  : 
Grant  v.  Henry  Clay  Coal  Co.,  80 
Penn.  208. 


502  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

Copies  of  foreign  records  in  certain  cases. — Sec.  907.  It 
shall  be  lawful  for  any  keeper  or  person  having  the  custody  of  laws, 
judgments,  orders,  decrees,  journals,  correspondence  or  other  public 
documents  of  any  foreign  government  or  its  agents,  relating  to  the 
title  to  lands  claimed  by  or  under  the  United  States,  on  the  appli- 
cation of  the  head  of  one  of  the  departments,  the  Solicitor  of  the 
Treasury,  or  the  Commissioner  of  the  General  Land-OflBce,  to 
authenticate  copies  thereof  under  his  hand  and  seal,  and  to  certify 
them  to  be  correct  and  true  copies  of  such  laws,  judgments,  orders, 
decrees,  journals,  correspondence  or  other  public  documents, 
respectively ;  and  when  such  copies  are  certified  by  an  American 
minister  or  consul,  under  his  hand  and  seal  of  office,  to  be  true  cop- 
ies of  the  originals,  they  shall  be  sealed  up  by  him  and  returned  to 
the  Solicitor  of  the  Treasury,  who  shall  file  them  in  his  office  and 
cause  them  to  be  recorded  in  a  book  to  be  kept  for  that  purpose.  A 
copy  of  any  such  law,  judgment,  order,  decree,  journal,  correspond- 
ence or  other  public  document  so  filed,  or  of  the  same  so  recorded 
in  said  book,  may  be  read  in  evidence  in  any  court,  where  the  title 
to  land  claimed  by  or  under  the  United  States  may  come  into  ques- 
tion, equally  with  the  originals. 

Little  &  Brown's  edition  op  the  statutes  to  be  evidence. 
— Sec.  908.  The  edition  of  the  laws  and  treaties  of  the  United 
States,  published  by  Little  &  Brown,  shall  be  competent  evidence 
of  the  several  public  and  private  acts  of  Congress,  and  of  the 
several  treaties  therein  contained,  in  all  the  courts  of  law  and 
equity  and  of  maritime  jurisdiction,  and  in  all  the  tribunals  and 
public  offices  of  the  United  States,  and  of  the  several  states,  with- 
out any  further  proof  or  authentication  thereof. 

The  act  of  June  20,  1874,  ch.  333,  §  8,  18  Stat.  114,  provides : 
That  the  said  printed  copies  of  the  said  acts  of  each  session 
and  of  the  said  bound  copies  of  the  acts  of  each  Congress 
shall  be  legal  evidence  of  the  laws  and  treaties  therein  contained, 
jn  all  the  courts  of  the  United  States  and  of  the  several  states 
therein. 

The  act  of  June  7,  1880,  Res.  44,  21  Stat.  308,  provides: 
The  publication  herein  authorized  shall  be  taken  to  be  prima  facie 
evidence  of  the  laws  therein  contained  in  all  the  courts  of  the 
United  States  and  of  the  several  states  and  territories  therein  ;  but 
shall  not   preclude  reference  to,  nor  control  in  case  of  any  discrep- 


EVIDENCE.  503 

ancy  the  effect  of,  any  original  act  as  passed  by  Congress ;  pro- 
vided, that  nothing  herein  contained  shall  be  construed  to  change 
or  alter  any  existing  law. 

Burden  of  proof  on  the  defendant  in  certain  cases. — 
Sec.  909.  In  suits  or  informations  brought,  where  any  seizure  is 
made  pursuant  to  any  act  providing  for  or  regulating  the  collection 
of  duties  on  imports  or  tonnage,  if  the  property  is  claimed  by  any 
person,  the  burden  of  proof  shall  lie  upon  such  claimant  ;  provided, 
that  probable  cause  is  shown  for  such  prosecution,  to  be  judged  of 
by  the  court.^ 

Possessory  actions  for  the  recovery  of  mining  titles. — 
Sec.  910.  No  possessory  action  between  persons,  in  any  court 
of  the  United  States,  for  the  recovery  of  any  mining  title,  or  for 
damages  to  any  such  title,  shall  be  affected  by  the  fact  that  the 
paramount  title  to  the  land  in  which  such  mines  lie  is  in  the 
United  States;  but  each  case  shall  be  adjudged  by  the  law  of 
possessions. 

^  If  probable  cause  is  shown  for  the  4  How.  242  ;    The  Luminary,  8  Wh. 

prosecution    under   this    section,   the  407. 

burden   of   proof  is   on    the     claim-  For  an  exposition  of  the  term  "prob- 

ant :    Locke  v.   United  States,  7  Cr.  able  cause,"  see   The  John  Griffin,  15 

339.  \i  &primafacie  case  is  made  out  Wall.  29;  Woods  v.  United  States,  16 

by  the   prosecutor   and  the  claimant  Pet.  342.  And  whether  probable  cause 

fails  to  produce  papers  or  other  evi-  has  been  shown  is  not  a  question  of 

dence  which  must  be  in  his  posses-  law  for  the  court  to  determine :    Clif- 

sion  or  under  his  control,  and  which  ton  v.  United  States,  supra;  Taylor  v. 

would  determine  the  question,  he  can-  United    States,  3  How.  197  ;  Buckley 

not  succeed  :  Clifton  v.  United  States,  v.  United  States,  4  How.  251  ;  see  also 

Cliquot's  Champagne,  3  Wall.  114. 


CHAPTER  XXV. 

PROVISIONS    OF    THE    REVISED    STATUTES    REGULATING  .PROCEDURE 
IN   THE    FEDERAL    COURTS. 

§  526.  We  have  considered  the  subject  of  procedure  in  treating  of 
the  Supreme  Court  and  the  circuit  and  district  courts ;  but  for 
convenience  for  reference  we  insert  the  provisions  of  the  statute 
relating  to  this  subject : 

Sealing  and  testing  of  writs. — Sec.  911.  All  writs  and  pro- 
cesses issuing  from  the  courts  of  the  United  States  shall  be  under 
the  seal  of  the  court  from  which  thej  issue,  and  shall  be  signed  by 
the  clerk  thereof.  Those  issuing  from  the  Supreme  Court  or  a  cir- 
cuit court  shall  bear  teste  of  the  Chief  Justice  of  the  United  States, 
or,  when  that  office  is  vacant,  of  the  associate  justice  next  in  pre- 
cedence; and  those  issuing  from  a  district  court  shall  bear  teste  of 
the  judge,  or,  when  that  office  is  vacant,  of  the  clerk  thereof.  The 
seals  of  the  said  courts  shall  be  provided  at  the  expense  of  the 
United  States. 

Teste  of  process,  day  of. — Sec.  912,  All  process  issued  from 
the  courts  of  the  United  States  shall  bear  teste  from  the  day  of 
such  issue. 

Mesne  process,  and  proceedings  in  equity  and  admiralty. 
— Sec.  913.  The  forms  of  mesne  process  and  the  forms  and  modes 
of  proceeding  in  suits  of  equity  and  of  admiralty  and  maritime  juris- 
diction in  the  circuit  and  district  courts  shall  be  according  to  the 
principles,  rules  and  usages  which  belong  to  courts  of  equity  and 
of  admiralty,  respectively,  except  when  it  is  otherwise  provided  by 
statute  or  by  rules  of  court  made  in  pursuance  thereof;  but  the 
same  shall  be  subject  to  alteration  and  addition  by  the  said  courts, 
respectively,  and  to  regulation  by  the  Supreme  Court,  by  rules 
prescribed,  from  time  to  time,  to  any  circuit  or  district  court,  not 
inconsistent  with  the  laws  of  the  United  States. 

Other  than  equity  and  admiralty  causes. — See.  914.  The 
practice,  pleadings  and  forms  and  modes  of  proceeding  in  civil 
causes,  other  than  equity  and  admiralty  causes,  in  the  circuit  and 
district  courts,  shall  conform,  as  near  as  may  be,  to  the  practice, 


PROCEDURE.  505 

pleadings  and  forms  and  modes  of  proceeding  existing  at  the  time 
in  like  causes  in  the  courts  of  record  of  the  state  within  which  such 
circuit  or  district  courts  are  held,  anj  rule  of  court  to  the  contrary 
notwithstanding. 

Attachments. — Sec.  915.  In  common  law  causes  in  the  circuit 
and  district  courts  the  plaintiff  shall  be  entitled  to  similar  remedies, 
by  attachment  or  other  process,  against  the  property  of  the  defend- 
ant, which  are  now  provided  by  the  laws  of  the  state  in  which  such 
court  is  held  for  the  courts  thereof;  and  such  circuit  or  district 
courts  may  from  time  to  time,  by  general  rules,  adopt  such  state 
laws  as  may  be  in  force  in  the  states  where  they  are  held  in  rela- 
tion to  attachments  and  other  process;  provided,  that  similar  pre- 
liminary affidavits  or  proofs,  and  similar  security,  as  required  by 
such  state  laws,  shall  be  first  furnished  by  the  party  seeking  such 
attachment  or  other  remedy. 

Executions  in  common  law  causes. — Sec.  916.  The  party 
recovering  a  judgment  in  any  common  law  cause  in  any  circuit  or 
district  court  shall  be  entitled  to  similar  remedies  upon  the  same, 
by  execution  or  otherwise,  to  reach  the  property  of  the  judgment 
debtor,  as  are  now  provided  in  like  causes  by  the  laws  of  the  state 
in  which  such  court  is  held,  or  by  any  such  laws  hereafter  enacted 
which  may  be  adopted  by  general  rules  of  such  circuit  or  district 
court;  and  such  courts  may  from  time  to  time,  by  general  rules, 
adopt  such  state  laws  as  may  hereafter  be  in  force  in  such  state  in 
relation  to  remedies  upon  judgments,  as  aforesaid,  by  execution  or 
otherwise. 

Power  of  the  Supreme  Court  to  regulate  the  practice  op 
circuit  and  district  courts. — Sec.  917.  The  Supreme  Court  shall 
have  power  to  prescribe  from  time  to  time,  and  in  any  manner  not 
inconsistent  with  any  law  of  the  United  States,  the  forms  of  writs 
and  other  process,  the  modes  of  framing  and  filing  proceedings  and 
pleadings,  of  taking  and  obtaining  evidence,  of  obtaining  discovery, 
of  proceeding  to  obtain  relief,  of  drawing  up,  entering  and  enroll- 
ing decrees,  and  of  proceeding  before  trustees  appointed  by  the 
court,  and  generally  to  regulate  the  whole  practice,  to  be  used,  in 
suits  in  equity  or  admiralty,  by  the  circuit  and  district  courts. 

Practice  in  the  several  courts  to  be  regulated  by  their 
OWN  rules. — See.  918.  The  several  circuit  and  district  courts  may 
from  time  to  time,  and  in  any  manner  not  inconsistent  with  any  law 


506  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

of  the  United  States,  or  with  any  rule  prescribed  by  the  Supreme 
Court  under  the  preceding  section,  make  rules  and  orders  directing 
the  returning  of  writs  and  processes,  the  filing  of  pleadings,  the 
taking  of  rules,  the  entering  and  making  up  of  judgments  by  de- 
fault, and  other  matters  in  vacation,  and  otherwise  regulate  their 
own  practice  as  may  be  necessary  or  convenient  for  the  advance- 
ment of  justice  and  the  prevention  of  delays  in  proceedings. 

Suits  for  duties,  imposts,  taxes,  penalties  or  forfeitures. 
— Sec.  919.  All  suits  for  the  recovery  of  any  duties,  imposts  or 
taxes,  or  for  the  enforcement  of  any  penalty  or  forfeiture  provided 
by  any  act  respecting  imports  or  tonnage,  or  the  registering  and 
recording  or  enrolling  and  licensing  of  vessels,  or  the  internal 
revenue,  or  direct  taxes,  and  all  suits  arising  under  the  postal  laws, 
shall  be  broug-ht  in  the  name  of  the  United  States. 

Consolidation  of  revenue  seizures, — Sec.  920.  Whenever 
two  or  more  things  belonging  to  the  same  person  are  seized  for  an 
alleged  violation  of  the  revenue  laws,  the  whole  must  be  included 
in  one  suit ;  and  if  separate  actions  are  prosecuted  in  such  cases, 
the  court  shall  consolidate  them. 

Orders  to  save  costs. — Sec.  921.  When  causes  of  a  like  na- 
ture or  relative  to  the  same  question  are  pending  before  a  court  of 
the  United  States,  or  of  any  territory,  the  court  may  make  such 
orders  and  rules  concerning  proceedings  therein  as  may  be  con- 
formable to  the  usages  of  courts  for  avoiding  unnecessary  costs  or 
delay  in  the  administration  of  justice,  and  may  consolidate  said 
causes  when  it  appears  reasonable  to  do  so. 

When  the  marshal  or  his  deputy  is  a  party  in  a  cause. — 
Sec.  922.  When  the  marshal  or  his  deputy  is  a  party  in  any  cause, 
the  writs  and  precepts  therein  shall  be  directed  to  such  disinterested 
person  as  the  court  or  any  justice  or  judge  thereof  may  appoint, 
and  the  person  so  appointed  may  execute  and  return  them. 

Seizures  for  forfeiture  in  certain  cases. — Sec.  923.  When 
any  vessel,  goods,  wares  or  merchandise  are  seized  by  any  officer  of 
the  customs,  and  prosecuted  for  forfeiture  by  virtue  of  any  law 
respecting  the  revenue,  or  the  registering  and  recording,  or  the 
enrolling  and  licensing  of  vessels,  the  court  shall  cause  fourteen 
days'  notice  to  be  given  of  such  seizure  and  libel,  by  causing  the 
substance  of  such  libel,  with  the  order  of  the  court  thereon,  setting 
forth  the  time  and  place  appointed  for  trial,  to  be  inserted  in  some 


PROCEDURE.  507 

newspaper  published  near  the  place  of  seizure,  and  by  posting  up 
the  same  in  the  most  public  manner  for  the  space  of  fourteen  days, 
at  or  near  the  place  of  trial ;  and  proclamation  shall  be  made  in 
such  manner  as  the  court  shall  direct.  And  if  no  person  appears 
and  claims  such  vessel,  goods,  wares  or  merchandise,  and  gives 
bond  to  defend  the  prosecution  thereof,  and  to  respond  the  cost  in 
case  he  shall  not  support  his  claim,  the  court  shall  proceed  to  hear 
and  determine  the  cause  according  to  law. 

Attachment  in  postal  suits. — See.  924.  In  all  cases  where 
debts  are  due  from  defaulting  or  delinquent  postmasters,  contract- 
ors or  other  officers,  agents  or  employes  of  the  Post-Office  Depart- 
ment, a  warrant  of  attachment  may  issue  against  all  real  and  per- 
sonal property  and  legal  and  equitable  rights  belonging  to  such 
officer,  agent  or  employ^  and  his  sureties,  or  either  of  them,  in  the 
following  cases : 

First. — When  such  officer,  agent  or  employ^  and  his  sureties,  or 
either  of  them,  is  a  non-resident  of  the  district  where  such  officer, 
agent  or  employ^  was  appointed,  or  has  departed  from  such  district 
for  the  purpose  of  permanently  residing  out  of  the  same,  or  of  de- 
frauding the  United  States,  or  of  avoiding  the  service  of  civil  pro- 
cess. 

Second. — When  such  officer,  agent  or  employ^  and  his  sureties, 
or  either  of  them,  has  conveyed  away  or  is  about  to  convey  away 
his  property,  or  any  part  thereof,  or  has  removed  or  is  about  to  re- 
move the  same,  or  any  part  thereof,  from  the  district  wherein  it  is 
situate,  with  intent  to  defraud  the  United  States. 

And  when  any  such  property  has  been  removed,  certified  copies 
of  the  warrant  may  be  sent  to  the  marshal  of  the  district  into  which 
the  same  has  been  removed,  under  which  certified  copies  he  may 
seize  said  property  and  convey  it  to  some  convenient  point  within 
the  jurisdiction  of  the  court  from  which  the  warrant  originally  is- 
sued. And  alias  warrants  may  be  issued  in  such  cases  upon  due 
application,  and  the  validity  of  the  warrant  first  issued  shall  con- 
tinue until  the  return  day  thereof. 

Application  for  warrant. — Sec.  925.  Application  for  such 
warrant  of  attachment  may  be  made  by  any  district  or  assistant 
district  attorney,  or  any  other  person  authorized  by  the  Postmaster 
General,  before  the  judge,  or,  in  his  absence,  before  the  clerk  of  any 
court  of  the  United  States  having  original  jurisdiction  of  the  cause 


508  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

of  action.  And  such  application  shall  be  made  upon  an  affidavit  of 
the  applicant,  or  of  some  other  credible  person,  stating  the  exist- 
ence of  either  of  the  grounds  of  attachment  enumerated  in  the  pre- 
ceding section,  and  upon  production  of  legal  evidence  of  the  debt. 

Issuing  warrant  ;  duty  of  clerk  and  marshal. — Sec.  926. 
Upon  any  such  application  and  upon  due  order  of  any  judge  of  the 
court,  or,  in  his  absence,  without  such  order,  the  clerk  shall  issue  a 
warrant  for  the  attachment  of  all  the  property  of  any  kind  belong- 
ing to  the  person  specified  in  the  affidavit,  which  warrant  shall  be 
executed  with  all  possible  dispatch  by  the  marshal,  who  shall  take 
the  property  attached,  if  personal,  into  his  custody,  and  hold  the 
same  subject  to  all  interlocutory  or  final  orders  of  the  court. 

Ownership  of  attached  property  ;  trial  ;  other  reme- 
dies.— See.  927.  At  any  time  within  twenty  days  before  the  return 
day  of  such  warrant  the  party  whose  property  is  attached  may,  on 
giving  notice  to  the  district  attorney  of  his  intention,  file  a  plea  in 
abatement,  traversing  the  allegations  of  the  affidavit,  or  denying 
the  ownership  of  the  property  attached  to  be  in  the  defendants  or 
either  of  them;  in  which  case  the  court  may,  upon  application  of 
either  party,  order  an  immediate  trial  by  jury  of  the  issues  raised 
by  the  affidavit  and  plea;  but  the  parties  may,  by  consent,  waive  a 
trial  by  jury,  in  which  case  the  court  shall  decide  the  issues  raised. 
And  any  party  claiming  ownership  of  the  property  attached  and  a 
specific  return  thereof  shall  be  confined  to  the  remedy  herein  af- 
forded, but  his  right  to  an  action  of  trespass,  or  other  action  for 
damages,  shall  not  be  impaired  hereby. 

Proceeds  of  attached  property  to  be  invested. — Sec.  928. 
When  the  property  attached  is  sold  on  any  interlocutory  order  of 
the  court,  or  is  producing  any  revenue,  the  money  arising  from 
such  sale  or  revenue  shall  be  invested  in  securities  of  the  United 
States,  under  the  order  of  the  court,  and  all  accretions  shall  be 
held  subject  to  the  orders  of  the  same. 

Publication  of  attachment. — Sec.  929.  Immediately  upon  the 
execution  of  any  such  warrant  of  attachment,  the  marshal  shall 
cause  due  publication  thereof  to  be  made,  in  the  case  of  absconding 
debtors  for  two  months  and  of  non-residents  for  four  months.  The 
publication  shall  be  made  in  some  newspaper  published  in  the  dis- 
trict where  the  property  is  situate,  and  the  details  thereof  shall  be 
regulated  by  the  order  under  which  the  warrant  is  issued. 


procedure.  509 

Persons  having  property  of  defendants  to  account  for  it  ; 
SALES  void;  personal  notice. — Sec.  930.  After  the  first  publica- 
tion of  such  notice  of  attachment  as  required  by  law,  every  person 
indebted  to  or  having  possession  of  any  property  belonging  to  the 
said  defendants,  or  either  of  them,  and  having  knowledge  of  such 
notice,  shall  account  and  answer  for  the  amount  of  such  debt  and 
the  value  of  such  property ;  and  any  disposal  or  attempt  to  dispose 
of  any  such  property,  to  the  injury  of  the  United  States,  shall  be 
illegal  and  void.  And  when  the  person  indebted  to  or  having  pos- 
session of  the  property  of  such  defendants,  or  either  of  them,  is 
known  to  the  district  attorney  or  marshal,  such  oflScer  shall  see  that 
personal  notice  of  the  attachment  is  served  upon  such  person,  but 
the  want  of  such  notice  shall  not  invalidate  the  attachment. 

Discharge  of  attachment  ;  bond. — Sec.  931.  Upon  applica- 
tion of  the  party  whose  property  has  been  attached,  the  court,  or 
any  judge  thereof,  may  discharge  the  warrant  of  attachment  as  to 
the  property  of  the  applicant,  provided  such  applicant  shall  execute 
to  the  United  States  a  good  and  sufficient  penal  bond,  in  double  the 
value  of  the  property  attached,  to  be  approved  by  a  judge  of  the 
court,  and  with  condition  for  the  return  of  said  property,  or  to  an- 
swer any  judgment  which  may  be  rendered  by  the  court  in  the 
premises. 

Accrued  rights  not  to  be  abridged. — Sec.  932.  Nothing  con- 
tained in  the  preceding  eight  sections  shall  be  construed  to  limit  or 
abridge,  in  any  manner,  such  rights  of  the  United  States  as  have 
accrued  or  been  allowed  in  any  district  under  the  former  practice 
of  or  thie  adoption  of  state  laws  by  the  United  States  courts. 

Attachments  dissolved  in  conformity  with  state  laws. — 
Sec.  933.  An  attachment  of  property,  upon  process  instituted  in 
any  court  in  the  United  States,  to  satisfy  such  judgment  as  may  be 
recovered  by  the  plaintiff  therein,  except  in  the  cases  mentioned  in 
the  preceding  nine  sections,  shall  be  dissolved  when  any  contingency 
occurs  by  which,  according  to  the  laws  of  the  state  where  said  court 
is  held,  such  attachment  would  be  dissolved  upon  like  process  insti- 
tuted in  the  courts  of  said  state ;  provided,  that  nothing  herein 
contained  shall  interfere  with  any  priority  of  the  United  States  in 
the  payment  of  debts. 

Property  taken  under  revenue  laws  irrepleviable. — Sec. 
934.  All  property  taken  or  detained  by  any  officer  or  other  person, 


510  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

under  authority  of  any  revenue  law  of  the  United  States,  shall  be 
irrepleviable,  and  shall  be  deemed  to  be  in  the  custody  of  the  law, 
and  subject  only  to  the  orders  and  decrees  of  the  courts  of  the 
United  States  haying  jurisdiction  thereof. 

Garnishees  in  suits  by  the  United  States  on  notes,  etc. — 
See.  935.  In  any  suit  by  the  United  States  against  a  corporation 
for  the  recovery  of  money  upon  a  bill,  note  or  other  security,  the 
debtors  of  the  corporation  may  be  summoned  as  garnishees ;  and  it 
shall  be  the  duty  of  any  person  so  summoned  to  appear  in  open 
court  and  to  depose,  in  writing,  to  the  amount  which  he  was  in- 
debted to  the  said  corporation  at  the  time  of  the  service  of  the  sum- 
mons and  at  the  time  of  making  such  deposition ;  and  judgment 
may  be  entered  in  favor  of  the  United  States  for  the  sum  admitted 
by  such  garnishee  to  be  due  to  the  said  corporation,  in  the  same 
manner  as  if  it  had  been  due  to  the  United  States ;  provided^  that 
no  judgment  shall  be  entered  against  any  garnishee  until  after  judg- 
ment has  been  rendered  against  the  corporation  defendant  to  the 
said  action,  or  until  the  sum  in  which  the  garnishee  stands  indebted 
is  actually  due. 

Issue  tendered  when  garnishee  denies  indebtedness. — 
Sec.  936.  When  any  person  summoned  as  garnishee  deposes  in 
open  court  that  he  is  not,  and  was  not  at  the  time  of  the  service  of 
the  summons,  indebted  to  such  corporation,  an  issue  may  be  ten- 
dered by  the  United  States  upon  such  demand,  and  if,  upon  the  trial 
of  that  issue,  a  verdict  is  rendered  against  the  garnishee,  judgment 
shall  be  entered  in  favor  of  the  United  States,  pursuant  to  such 
verdict,  with  costs  of  suit. 

Garnishee  failing  to  appear. — Sec.  937.  If  any  person  sum- 
moned as  garnishee,  as  aforesaid,  fails  to  appear  at  the  term  of  the 
court  to  which  he  is  summoned,  he  shall  be  subject  to  attachment 
for  contempt  of  the  court. 

Bailing  of  property  seized  under  customs  laws. — Sec.  938. 
Upon  the  prayer  of  any  claimant  to  the  court,  that  any  vessel, 
goods,  wares  or  merchandise,  seized  and  prosecuted  under  any  law 
respecting  the  revenue  from  imports  or  tonnage,  or  the  registering 
and  recording  or  the  enrolling  and  licensing  of  vessels,  or  any  part 
thereof,  should  be  delivered  to  him,  the  court  shall  appoint  three 
proper  persons  to  appraise  such  property,  who  shall  be  sworn  in 
open  court,  or  before  a  commissioner  appointed  by  the  district  court 


PROCEDURE.  511 

to  administer  oaths  to  appraisers,  for  the  faithful  discharge  of  their 
duty ;  and  the  appraisement  shall  be  made  at  the  expense  of  the 
party  on  whose  prayer  it  is  granted.  If,  on  the  return  of  the 
appraisement,  the  claimant,  with  one  or  more  sureties,  to  be 
approved  by  the  court,  shall  execute  a  bond  to  the  United  States 
for  the  payment  of  a  sum  equal  to  the  sum  at  which  the  property 
prayed  to  be  delivered  is  appraised,  and  produce  a  certificate  from 
the  collector  of  the  district  where  the  trial  is  had,  and  of  the  naval 
officer  thereof,  if  any  there  be,  that  the  duties  on  the  goods,  wares 
and  merchandise,  or  tonnage-duty  on  the  vessel  so  claimed,  have 
been  paid  or  secured  in  like  manner  as  if  the  same  had  been 
legally  entered,  the  court  shall,  by  rule,  order  such  vessel,  goods, 
wares  or  merchandise  to  be  delivered  to  such  claimant;  and  the  said 
bond  shall  be  lodged  with  the  proper  officer  of  the  court.  If  judg- 
ment passes  in  favor  of  the  claimant,  the  court  shall  cause  the  said 
bond  to  be  cancelled  ;  but  if  judgment  passes  against  the  claimant 
as  to  the  whole  or  any  part  of  such  vessel,  goods,  wares  or  merchan- 
dise, and  the  claimant  does  not  within  twenty  days  thereafter  pay 
into  the  court,  or  to  the  proper  officer  thereof,  the  amount  of  the 
appraised  value  of  such  vessel,  goods,  wares  or  merchandise  so  con- 
demned, with  the  costs,  judgment  shall  be  granted  upon  the  bond, 
on  motion  in  open  court,  without  further  delay.     (See  §  570.) 

Sale  after  condemnation. — Sec.  939.  All  vessels,  goods,  wares 
or  merchandise  which  shall  be  condemned  by  virtue  of  any  law 
respecting  the  revenue  from  imports  or  tonnage,  or  the  registering 
and  recording  or  the  enrolling  and  licensing  of  vessels,  and  for 
which  bonds  shall  not  have  been  given  by  the  claimant,  shall  be  sold 
by  the  marshal  or  other  proper  officer  of  the  court  in  which  condem- 
nation shall  be  had,  to  the  highest  bidder,  at  public  auction,  by 
order  of  such  court,  and  at  such  place  as  the  court  may  appoint, 
giving  at  least  fifteen  days'  notice  (except  in  cases  of  perishable 
merchandise)  in  one  or  more  of  the  public  newspapers  of  the  place 
where  such  sale  shall  be ;  or  if  no  paper  is  published  in  such  place, 
in  one  or  more  of  the  papers  published  in  the  nearest  place  thereto; 
for  which  advertising  a  sum  not  exceeding  five  dollars  shall  be  paid. 
And  the  amount  of  such  sales,  deducting  all  proper  charges,  shall 
be  paid  within  ten  days  after  such  sale  by  the  person  selling  the 
same  to  the  clerk  or  other  proper  officer  of  the  court  directing  such 
sale,  to  be  by  him,  after  deducting  the  charges  allowed  by  the  court. 


512  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

paid  to  the  collector  of  the  district  in  which  such  seizure  or  forfeit- 
ure has  taken  place,  as  hereinbefore  directed. 

In  CASES  OF  SEIZURE,  BAILING  OP  PROPERTY  IN  VACATION. — See. 
940.  In  any  cause  of  admiralty  and  maritime  jurisdiction,  or  other 
case  of  seizure,  depending  in  any  court  of  the  United  States,  any 
judge  of  the  said  court,  in  vacation,  shall  have  the  same  authority 
to  order  any  vessel  or  cargo  or  other  property  to  be  delivered  to 
the  claimants,  upon  bail  or  bond,  or  to  be  sold  when  necessary,  as 
the  said  court  has  in  term  time,  and  to  appoint  appraisers  and  exer- 
cise every  other  incidental  power  necessary  to  the  complete  execu- 
tion of  the  authority  herein  granted ;  and  the  recognizance  of  bail 
or  bond,  under  such  order,  may  be  executed  before  the  clerk  upon 
the  party's  producing  the  certificate  of  the  collector  of  the  district, 
of  the  sufficiency  of  the  security  offered ;  and  the  same  proceedings 
shall  be  had  in  case  of  said  order  of  delivery  or  of  sale  as  are  had 
in  like  cases  when  ordered  in  term  time  ;  provided,  that  upon 
every  such  application,  either  for  an  order  of  delivery  or  of  sale, 
the  collector  and  the  attorney  of  the  district  shall  have  reasonable 
notice  in  cases  of  the  United  States,  and  the  party  or  counsel  in 
all  other  cases. 

Delivery  bond  in  admiralty  proceedings. — Sec.  941.  When 
a  warrant  of  arrest  or  other  process  in  rem  is  issued  in  any  cause  of 
admiralty  jurisdiction,  except  the  cases  of  seizure  for  forfeiture 
under  any  law  of  the  United  States,  the  marshal  shall  stay  the  exe- 
cution of  such  process,  or  discharge  the  property  arrested  if  the 
process  has  been  levied,  on  receiving  from  the  claimant  of  the  prop- 
erty a  bond  or  stipulation  in  double  the  amount  claimed  by  the 
libellant,  with  sufficient  surety,  to  be  approved  by  the  judge  of  the 
court  where  the  cause  is  pending,  or,  in  his  absence,  by  the  collector 
of  the  port,  conditioned  to  answer  the  decree  of  the  court  in  such 
cause.  Such  bond  or  stipulation  shall  be  returned  to  the  court,  and 
judgment  thereon,  against  both  the  principal  and  sureties,  may  be 
recovered  at  the  time  of  rendering  the  decree  in  the  original  cause. 

Special  bail  required  in  suits  for  duties  and  penalties. — 
See.  942.  In  all  suits  or  prosecutions  for  the  recovery  of  duties  or 
pecuniary  penalties  prescribed  by  the  laws  of  the  United  States, 
commenced  in  any  state  where,  by  the  laws  thereof,  impris- 
onment for  debt  shall  not  have  been  abolished,  the  person 
against  whom  process  is  issued  shall  be  held  to  special  bail,  subject 


PROCEDURE.  513 

to  the  rules  which  prevail    in  civil  suits  in  which  special   bail  is 
required. 

When  defendant  giving  bail  in  one  district  is  committed 
IN  another. — Sec.  943.  When  a  defendant  who  has  procured  bail 
to  respond  to  the  judgment  in  a  suit  in  any  court  of  the  United 
States  in  any  district  is  afterward  arrested  in  any  other  district  and 
is  committed  to  a  jail  the  use  of  which  has  been  ceded  to  the 
United  States  for  the  custody  of  prisoners,  the  judge  of  the  court 
wherein  the  suit  in  which  the  defendant  has  so  procured  bail  is 
depending  shall,  at  the  request  of  the  bail,  order  that  such  defend- 
ant be  held  in  said  jail,  in  the  custody  of  the  marshal  of  the  district 
in  which  it  is.  The  said  marshal,  upon  the  delivery  of  such  order, 
duly  authenticated,  shall  receive  such  person  into  his  custody,  and 
thereupon  be  chargeable  for  an  escape,  and  shall  forthwith  make  a 
certificate,  under  his  hand  and  seal,  of  such  commitment,  and  trans- 
mit the  same  to  the  court  from  which  the  order  issued,  and,  if 
required,  shall  make  and  deliver  to  such  bail  or  his  attorney  a  dupli- 
cate thereof.  Upon  the  return  of  said  certificate,  the  court  which 
made  the  said  order,  or  any  judge  thereof,  may  direct  that  an  exon- 
eretur  be  entered  upon  the  bail-piece,  where  special  bail  shall  have 
been  found,  or  otherwise  discharge  such  bail. 

Defendant  held  until  judgment  in  the  first  suit. — Sec. 
944.  When  a  defendant  is  committed  by  virtue  of  the  order  pro- 
vided in  the  preceding  section,  he  shall,  unless  sooner  discharged 
by  law,  be  holden  in  jail  until  final  judgment  is  rendered  in  the  suit 
in  which  he  procured  bail  as  aforesaid,  and  sixty  days  thereafter  if 
such  judgment  is  rendered  against  him,  in  order  that  he  may  be 
charged  in  execution,  which  may  in  such  cases  be  directed  to  and 
served  by  the  marshal  in  whose  custody  he  is. 

Bail  and  affidavits  may  be  taken  by  commissioners  of  cir- 
cuit courts. — Sec.  945.  Bail  and  afiidavits,  when  required  or 
allowed  in  any  civil  cause  in  any  circuit  or  district  court,  may  be 
taken  by  a  commissioner  of  the  circuit  court  for  the  district ;  and 
such  acknowledgments  of  bail  and  affidavits  shall  have  the  same 
efi"ect  as  if  taken  before  any  judge  of  such  courts. 

Calling  of  bail  in  Kentucky. — Sec.  946.  When  a  bail-bond  is 

given  for  the  appearance  of  any  person  to  answer  in  the  district  or 

circuit  court  for  the  district  of  Kentucky,  the  clerk  of  such  court 

shall  call  the  party  at  the  time  he  is  bound  to  appear.    If  the  party 

33 


514  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

fails,  tlie  clerk  shall  enter  such  failure  on  his  minutes,  and  on  said 
entry  judgment  may  afterward  be  made  of  record  by  the  court ;  but  if 
the  party  appears,  the  clerk  shall  take  another  bond,  with  sureties 
similar  to  the  first,  for  further  appearance  at  the  next  succeeding  term 
of  the  court,  and  if  the  party  fails  to  give  such  other  bond  and  surety, 
he  shall  stand  committed  by  order  of  the  clerk  until  he  complies. 

When  clerks  may  take  bail  de  bene  esse. — Sec.  947.  Re- 
cognizances of  special  bail  may  be  taken  de  bene  esse  by  the  clerks 
of  the  circuit  and  district  courts,  in  the  absence  or  in  case  of  the 
disability  of  the  judges,  in  any  action  depending  in  either  of  the 
said  courts,  where  special  bail  is  demandable. 

Amendment  of  process. — Sec.  948,  Any  circuit  or  district  court 
may  at  any  time,  in  its  discretion  and  upon  such  terms  as  it  may 
deem  just,  allow  an  amendment  of  any  process  returnable  to  or  be- 
fore it,  where  the  defect  has  not  prejudiced  and  the  amendment  will 
not  injure  the  party  against  whom  such  process  issues. 

Priority  of  cases  in  which  a  state  is  a  party. — Sec.  949. 
When  a  state  is  a  party,  or  the  execution  of  the  revenue  laws  of  a 
state  is  enjoined  or  stayed,  in  any  suit  in  a  court  of  the  United 
States,  such  state  or  the  party  claiming  under  the  revenue  laws  of 
a  state,  the  execution  whereof  is  enjoined  or  stayed,  shall  be  enti- 
tled, on  showing  sufficient  reason,  to  have  the  cause  heard  at  any 
time  after  it  is  docketed,  in  preference  to  any  civil  cause  pending 
in  such  court  between  private  parties. 

Notice  of  case  for  trial. — Sec.  950.  In  all  civil  actions  in  the 
courts  of  the  United  States  either  party  may  notice  the  same  for  trial. 

Suits  of  United  States  against  individuals,  what  credits 
allowed. — Sec.  951.  In  suits  brought  by  the  United  States  against 
individuals,  no  claim  for  a  credit  shall  be  admitted,  upon  trial,  ex- 
cept such  as  appear  to  have  been  presented  to  the  accounting  offi- 
cers of  the  treasury,  for  their  examination,  and  to  have  been  by 
them  disallowed,  in  whole  or  in  part,  unless  it  is  proved  to  the  sat- 
isfaction of  the  court  that  the  defendant  is,  at  the  time  of  the  trial, 
in  possession  of  vouchers  not  before  in  his  power  to  procure,  and 
that  he  was  prevented  from  exhibiting  a  claim  for  such  credit  at 
the  treasury  by  absence  from  the  United  States  or  by  some  una- 
voidable accident. 

In  suits  under  postal  laws,  what  credits  allowed. — Sec. 
952.  No  claim  for  a  credit  shall  be  allowed  upon  the  trial  of  any 


PROCEDURE.  515 

suit  for  delinquency  against  a  postmaster,  contractor  or  other  offi- 
cer, agent  or  employ^  of  the  Post-Office  Department,  unless  the 
same  has  been  presented  to  the  Sixth  Auditor  and  by  him  disal- 
lowed, in  -whole  or  in  part,  or  unless  it  is  proved  to  the  satisfaction 
of  the  court  that  the  defendant  is,  at  the  time  of  trial,  in  posses- 
sion of  vouchers  not  before  in  his  power  to  procure,  and  that  he 
was  prevented  from  exhibiting  to  the  said  Auditor  a  claim  for  such 
credit  by  some  unavoidable  accident. 

Bill  of  exceptions. — Sec.  953.  A  bill  of  exceptions  allowed  in 
any  cause  shall  be  deemed  sufficiently  authenticated  if  signed  by 
the  judge  of  the  court  in  which  the  cause  was  tried,  or  by  the  pre- 
siding judge  thereof  if  more  than  one  judge  sat  on  the  trial  of  the 
cause,  without  ajiy  seal  of  court  or  judge  being  annexed  thereto. 

Defects  of  form  ;  amendments. — Sec.  954.  No  summons, 
writ,  declaration,  return,  process,  judgment  or  other  proceedings  in 
civil  causes,  in  any  court  of  the  United  States,  shall  be  abated,  ar- 
rested, quashed  or  reversed  for  any  defect  or  want  of  form ;  but 
such  court  shall  proceed  and  give  judgment  according  as  the  right 
of  the  cause  and  matter  in  law  shall  appear  to  it,  without  regarding 
any  such  defect  or  want  of  form,  except  those  which,  in  cases  of 
demurrer,  the  party  demurring  specially  sets  down,  together  with 
his  demurrer,  as  the  cause  thereof;  and  such  court  shall  amend 
every  such  defect  and  want  of  form,  other  than  those  which  the 
party  demurring  so  expresses ;  and  may  at  any  time  permit  either 
of  the  parties  to  amend  any  defect  in  the  process  or  pleadings,  upon 
such  conditions  as  it  shall,  in  its  discretion  and  by  its  rules,  pre- 
scribe. 

Death  of  parties. — Sec.  955.  When  either  of  the  parties, 
whether  plaintiff  or  petitioner  or  defendant,  in  any  suit  in  any  court 
of  the  United  States,  dies  before  final  judgment,  the  executor  or 
administrator  of  such  deceased  party  may,  in  case  the  cause  of  ac- 
tion survives  by  law,  prosecute  or  defend  any  such  suit  to  final 
judgment.  The  defendant  shall  answer  accordingly  ;  and  the  court 
shall  hear  and  determine  the  cause  and  render  judgment  for  or 
against  the  executor  or  administrator,  as  the  case  may  require. 
And  if  such  executor  or  administrator,  having  been  duly  served 
with  a  scire  facias  from  the  office  of  the  clerk  of  the  court  where 
the  suit  is  depending,  twenty  days  beforehand,  neglects  or  refuses 
to  become  party  to  the  suit,  the  court  may  render  judgment  against 


516  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

the  estate  of  the  deceased  party,  in  the  same  manner  as  if  the  ex- 
ecutor or  administrator  had  voluntarily  made  himself  a  party.  The 
executor  or  administrator  who  becomes  a  party  as  aforesaid  shall, 
upon  motion  to  the  court,  be  entitled  to  a  continuance  of  the  suit 
until  the  next  term  of  said  court. 

When  one  of  several  plaintiffs  or  defendants  dies. — See. 
956.  If  there  are  two  or  more  plaintiffs  or  defendants  in  a  suit 
where  the  cause  of  action  survives  to  the  surviving  plaintiff  or 
against  the  surviving  defendant,  and  one  or  more  of  them  dies,  the 
writ  or  action  shall  not  be  thereby  abated ;  but,  such  death  being 
suggested  upon  the  record,  the  action  shall  proceed  at  the  suit  of 
the  surviving  plaintiff  against  the  surviving  defendant. 

Delinquents  for  public  money  ;  judgment  at  return  term, 
unless,  etc. — Sec.  957.  When  suit  is  brought  by  the  United  States 
against  any  revenue  officer  or  other  person  accountable  for  public 
money,  who  neglects  or  refuses  to  pay  into  the  treasury  the  sum  or 
balance  reported  to  be  due  to  the  United  States,  upon  the  adjust- 
ment of  his  account  it  shall  be  the  duty  of  the  court  to  grant  judg- 
ment at  the  return  term,  upon  motion,  unless  the  defendant,  in  open 
court  (the  United  States  attorney  being  present),  makes  and  sub- 
scribes an  oath  that  he  is  equitably  entitled  to  credits  which  had 
been,  previous  to  the  commencement  of  the  suit,  submitted  to  the 
accounting  officers  of  the  treasury  and  rejected ;  specifying  in  the 
affidavit  each  particular  claim  so  rejected,  and  that  he  cannot  then 
safely  come  to  trial.  If  the  court,  when  such  oath  is  made,  sub- 
scribed and  filed,  is  thereupon  satisfied,  a  continuance  until  the  next 
succeeding  term  may  be  granted.  Such  continuance  may  also  be 
granted  when  the  suit  is  brought  upon  a  bond  or  other  sealed  instru- 
ment, and  the  defendant  pleads  non  est  factum,  or  makes  a  motion 
to  the  court,  verifying  such  plea  or  motion  by  his  oath,  and  the 
court  thereupon  requires  the  production  of  the  original  bond,  con- 
tract or  other  paper  specified  in  the  affidavit.  And  no  continuance 
shall  be  granted  except  as  herein  provided. 

Judgment  in  suits  under  postal  laws. — Sec.  958.  In  suits 
arising  under  the  postal  laws  the  court  shall  proceed  to  trial,  and 
render  judgment  at  the  return  term ;  but  whenever  service  of  pro- 
cess is  not  made  at  least  twenty  days  before  the  return  day  of  such 
term,  the  defendant  is  entitled  to  one  continuance,  if,  on  his  state- 
ment, the  court  deems  it  expedient ;  and  if  he  makes  affidavit  that 


PROCEDURE.  517 

he  has  a  claim  against  the  Post-OflSce  Department,  which  has  been 
submitted  to  and  disallowed  bj  the  Sixth  Auditor,  specifying  such 
claim  in  his  affidavit,  and  that  he  could  not  be  prepared  for  trial  at 
such  term  for  want  of  evidence,  the  court,  if  satisfied  thereof,  may 
grant  a  continuance  until  the  next  term. 

Judgment  in  suits  on  debentures. — Sec.  959.  In  all  suits  for 
the  recovery  of  money  upon  debentures  issued  by  the  collectors  of 
customs,  under  any  act  for  the  collection  of  duties,  it  shall  be  the 
duty  of  the  court  to  grant  judgment  at  the  return  term,  unless  the 
defendant,  in  open  court,  exhibits  some  plea,  on  oath,  by  which  the 
court  is  satisfied  that  a  continuance  is  necessary  to  the  attainment 
of  justice ;  in  which  case,  and  not  otherwise,  a  continuance  until 
the  next  term  may  be  granted. 

Suits  on  bonds  for  recovery  of  duties. — Sec.  960.  When  suit 
is  brought  on  any  bond  for  the  recovery  of  duties  due  to  the  United 
States,  it  shall  be  the  duty  of  the  court  to  grant  judgment  at  the 
return  term,  upon  motion,  unless  the  defendant,  in  open  court  (the 
United  States  attorney  being  present),  makes  oath  that  an  error  has 
been  committed  in  the  liquidation  of  the  duties  demanded  upon  such 
bond,  specifying  the  errors  alleged  to  have  been  committed,  and 
that  the  same  have  been  notified  in  writing  to  the  collector  of  the 
district  before  the  said  return  term ;  whereupon  a  continuance  may 
be  granted  until  the  next  term,  and  no  longer,  if  the  court  is  satis- 
fied that  such  continuance  is  necessary  for  the  attainment  of  justice. 

Judgment  for  sum  due  in  equity  on  bonds,  etc. — Sec.  961.  In 
all  suits  brought  to  recover  the  forfeiture  annexed  to  any  articles  of 
agreement,  covenant,  bond  or  other  specialty,  where  the  forfeiture, 
breach  or  non-performance  appears  by  the  default  or  confession  of 
the  defendant,  or  upon  demurrer,  the  court  shall  render  judgment 
for  the  plaintiff  to  recover  so  much  as  is  due  according  to  equity. 
And  when  the  sum  for  which  judgment  should  be  rendered  is  un- 
certain, it  shall,  if  either  of  the  parties  request  it,  be  assessed  by  a 

jury. 

Judgment  for  duties,  etc, — Sec.  962.  In  all  suits  by  the 
United  States  for  the  recovery  of  duties  upon  imports,  or  of  penal- 
ties for  the  non-payment  thereof,  the  judgment  shall  recite  that  it  is 
rendered  for  duties,  and  such  judgment,  with  interest  thereon,  and 
costs,  shall  be  payable  in  the  coin  by  law  receivable  for  duties ;  and 
the  execution  issued  thereon  shall  set  forth  that  the  recovery  is  for 


518  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

duties,  and  shall  require  the  marshal  to  satisfy  the  same  in  the  coin 
by  law  receivable  for  duties ;  and  in  case  of  levy  upon  and  sale  of 
the  property  of  the  judgment  debtor,  the  marshal  shall  refuse  pay- 
ment from  any  purchaser  at  such  sale  in  any  other  money  than  that 
specified  in  the  execution.     (See  §  3014.) 

Interest  on  bonds  for  duties. — Sec.  963.  Upon  all  bonds  on 
which  suits  are  brought  for  the  recovery  of  duties,  interest  shall  be 
allowed,  at  the  rate  of  six  per  centum  a  year,  from  the  time  when 
said  bonds  became  due. 

Interest  on  balances  due  Post-Office  Department. — Sec. 
964.  In  all  suits  for  balances  due  to  the  Post-OflSce  Department, 
interest  thereon  shall  be  recovered  from  the  time  of  the  default,  at 
the  rate  of  six  per  centum  a  year. 

Interest  on  debentures. — See.  965.  In  suits  upon  debentures, 
issued  by  the  collectors  of  the  customs  under  any  act  for  the  col- 
lection of  duties,  interest  shall  be  allowed,  at  the  rate  of  six  per 
centum  per  annum,  from  the  time  when  such  debenture  became  due 
and  payable. 

Interest  on  judgments. — Sec.  966.  Interest  shall  be  allowed 
on  all  judgments  in  civil  causes,  recovered  in  a  circuit  or  district 
court,  and  may  be  levied  by  the  marshal  under  process  of  execution 
issued  thereon,  in  all  cases  where,  by  the  law  of  the  state  in  which 
such  court  is  held,  interest  may  be  levied  under  process  of  execu- 
tion on  judgments  recovered  in  the  courts  of  such  state  ;  and  it  shall 
be  calculated  from  the  date  of  the  judgment,  at  such  rate  as  is 
allowed  by  law  on  judgments  recovered  in  the  courts  of  such  state. 

When  judgments  of  United  States  courts  cease  to  be 
liens. — See.  967.  Judgments  and  decrees  rendered  in  a  circuit  or 
district  court,  within  any  state,  shall  cease  to  be  liens  on  real 
estate  or  chattels  real,  in  the  same  manner  and  at  like  periods  as 
judgments  and  decrees  of  the  courts  of  such  state  cease,  by  law, 
to  be  liens  thereon. 

No  costs  on  recovery  of  less  than  $500. — Sec.  968.  When, 
in  a  circuit  court,  a  plaintiff  in  an  action  at  law  originally  brought 
there,  or  a  petitioner  in  equity,  other  than  the  United  States,  re- 
covers less  than  the  sum  or  value  of  five  hundred  dollars,  exclusive 
of  costs,  in  a  case  which  cannot  be  brought  there  unless  the  amount 
in  dispute,  exclusive  of  costs,  exceeds  said  sum  or  value ;  or  a  libel- 
lant,  upon  his  own  appeal,  recovers  less  than  the  sum  or  value  of 


PROCEDURE.  519 

three  hundred  dollars,  exclusive  of  costs,  he  shall  not  be  allowed, 
but,  at  the  discretion  of  the  court,  may  be  adjudged  to  pay,  costs. 

Costs  in  internal  revenue  suits  upon  information. — See. 
969.  When  a  suit  for  recovery  of  any  penalty  or  forfeiture  accru- 
ing under  any  law  providing  internal  revenue  is  brought  upon  infer-' 
mation  received  from  any  person  other  than  a  collector,  deputy 
collector  or  inspector  of  internal  revenue,  the  United  States  shall 
not  be  subject  to  any  costs  of  suit. 

Claimant  not  entitled  to  costs  when  reasonable  cause  of 
SEIZURE. — Sec.  970.  When,  in  any  prosecution  commenced  on  ac- 
count of  the  seizure  of  any  vessel,  goods,  wares  or  merchandise, 
made  by  any  collector  or  other  officer,  under  any  act  of  Congress 
authorizing  such  seizure,  judgment  is  rendered  for  the  claimant, 
but  it  appears  to  the  court  that  there  was  reasonable  cause  of  seiz- 
ure, the  court  shall  cause  a  proper  certificate  thereof  to  be  entered, 
and  the  claimant  shall  not,  in  such  case,  be  entitled  to  costs,  nor 
shall  the  person  who  made  the  seizure,  nor  the  prosecutor,  be  liable 
to  suit  or  judgment  on  account  of  such  suit  or  prosecution;  pro- 
vided^ that  the  vessel,  goods,  wares  or  merchandise  be,  after  judg- 
ment, forthwith  returned  to  such  claimant  or  his  agent. 

Double  costs,  when  plaintiff  is  nonsuited  in  action  against 
officer  making  seizure,  etc. — Sec.  971.  If,  in  any  suit  against 
an  officer  or  other  person  executing  or  aiding  or  assisting  in  the 
seizure  of  goods,  under  any  act  providing  for  or  regulating  the 
collection  of  duties  on  imports  or  tonnage,  the  plaintiff  is  nonsuited, 
or  judgment  passed  against  him,  the' defendant  shall  recover  double 
costs. 

In  copyright  suits,  costs. — See.  972.  In  all  recoveries  under 
the  copyright  laws,  either  for  damages,  forfeitures  or  penalties, 
full  costs  shall  be  allowed  thereon. 

Costs,  infringement  of  patent. — See.  973.  When  judgment 
or  decree  is  rendered  for  the  plaintiff  or  complainant,  in  any  suit  at 
law  or  in  equity,  for  the  infringement  of  a  part  of  a  patent,  in  which 
it  appears  that  the  patentee,  in  his  specification,  claimed  to  be  the 
original  and  first  inventor  or  discoverer  of  any  material  or  sub- 
stantial part  of  the  thing  patented,  of  which  he  was  not  the  original 
and  first  inventor,  no  costs  shall  be  recovered  unless  the  proper 
disclaimer,  as  provided  by  the  patent-laws,  has  been  entered  at  the 
Patent-Office  before  the  suit  was  brought. 


520  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

When  costs  of  prosecution  to  be  paid  by  defendant. — Sec. 
974.  When  judgment  is  rendered  against  the  defendant  in  a  prose- 
cution for  any  fine  or  forfeiture  incurred  under  a  statute  of  the 
United  States,  he  shall  be  subject  to  the  payment  of  costs ;  and  on 
'every  conviction  for  any  other  oiFence  not  capital,  the  court  may, 
in  its  discretion,  award  that  the  defendant  shall  pay  the  costs  of  the 
prosecution. 

When  costs  are  recovered  by  defendant  in  a  prosecution. 
— Sec.  975.  If  any  informer  or  plaintiff  on  a  penal  statute,  to 
whom  the  penalty  or  any  part  thereof,  if  recovered,  is  directed  to 
accrue,  discontinues  his  suit  or  prosecution,  or  is  nonsuited  therein, 
or  if  upon  trial  judgment  is  rendered  in  favor  of  the  defendant,  the 
court  shall  award  to  the  defendant  his  costs,  unless  such  informer  or 
plaintiff  is  an  officer  of  the  United  States  specially  authorized  to 
commence  such  prosecution,  and  the  court,  at  the  trial  in  open 
court,  certifies  upon  the  record  that  there  was  reasonable  cause  for 
commencing  the  same ;  in  which  case  no  costs  shall  be  adjudged  to 
the  defendant. 

Fees  of  clerk,  marshal,  etc.  ;  by  whom  payable. — Sec.  976. 
If  any  informer  on  a  penal  statute,  to  whom  the  penalty  or  any 
part  thereof,  if  recovered,  is  directed  to  accrue,  discontinues  his 
suitor  prosecution,  or  is  nonsuited  therein,  or  if  upon  trial  judg- 
ment is  rendered  in  favor  of  the  defendant,  such  informer  shall  be 
alone  liable  to  the  clerk,  marshal  and  attorney  for  the  fees  of  such 
prosecution,  unless  he  is  an  officer  of  the  United  States  whose  duty 
it  is  to  commence  such  prosecution,  and  the  court  certifies  that  there 
was  reasonable  cause  for  commencing  the  same  ;  in  which  case  the 
United  States  shall  be  responsible  for  such  fees. 

Costs  ;  nonjoinder  of  action. — Sec.  977.  If  several  actions 
or  processes  are  instituted,  in  a  court  of  the  United  States  or  one  of 
the  territories,  against  persons  who  might  legally  be  joined  in  one 
action  or  process  touching  the  matter  in  dispute,  the  party  pursuing 
the  same  shall  not  recover,  on  all  of  the  judgments  therein  which 
may  be  rendered  in  his  favor,  the  costs  of  more  than  one  action  or 
process,  unless  special  cause  for  said  several  actions  or  processes  is 
satisfactorily  shown  on  motion  in  open  court. 

Costs  in  libels  against  vessel  and  cargo. — Sec.  978.  When 
proceedings  are  had  before  a  court  of  the  United  States  or  of  the 
territories,  on  several   libels  against  any  vessel  and  cargo,  which 


PROCEDURE.  521 

might  legally  be  joined  in  one  libel,  there  shall  not  be  allowed 
thereon  more  costs  than  on  one  libel,  unless  special  cause  for  libel- 
ling the  vessel  and  cargo  separately  is  satisfactorily  shown  on  motion 
in  open  court.  And  in  proceedings  on  several  libels  or  informa- 
tions against  any  cargo,  or  parts  of  cargo,  or  merchandise  seized  as 
forfeited  for  the  same  cause,  there  shall  not  be  allowed  more  costs 
than  would  be  lawful  on  one  libel  or  information,  whatever  may  be 
the  number  of  owners  or  consignees  therein  concerned.  But  allow- 
ance may  be  made  on  one  libel  or  information  for  the  costs  inci- 
dental to  several  claims. 

Claimant's  costs  to  be  paid  before  possession,  when,  etc. 
— Sec.  979.  When  judgment  is  rendered  in  favor  of  the  claimant 
of  any  vessel  or  other  property  seized  on  behalf  of  the  United 
States,  and  libelled  or  informed  against  as  forfeited  under  any  law 
thereof,  he  shall  be  entitled  to  possession  of  the  same  when  his  own 
costs  are  paid. 

District  attorney's  costs. — Sec.  980.  When  a  district  attorney 
prosecutes  two  or  more  indictments,  suits  or  proceedings  which 
should  be  joined,  he  shall  be  paid  but  one  bill  of  costs  for  all  of 
them. 

Taxation  of  fees  of  witness  before  a  commissioner.— /S'ec. 
981.  In  no  case  shall  the  fees  of  more  than  four  witnesses  be 
taxed  against  the  United  States,  in  the  examination  of  any  crimi- 
nal case  before  a  commissioner  of  a  circuit  court,  unless  their 
materiality  and  importance  are  first  approved  and  certified  to  by 
the  district  attorney  for  the  district  in  which  the  examination  is 
had ;  and  such  taxation  shall  be  subject  to  revision,  as  in  other 
cases. 

Attorney  liable  for  costs  vexatiously  increased  by  him. 
— Sec.  982.  If  any  attorney,  proctor  or  other  person  admitted  to 
conduct  causes  in  any  court  of  the  United  States,  or  of  any  terri- 
tory, appears  to  have  multiplied  the  proceedings  in  any  cause  before 
such  court,  so  as  to  increase  costs  unreasonably  and  vexatiously,  he 
shall  be  required,  by  order  of  the  court,  to  satisfy  any  excess  of 
costs  so  increased. 

Bill  of  costs  ;  how  taxed. — Sec.  983.  The  bill  of  fees  of  the 
clerk,  marshal  and  attorney,  and  the  amount  paid  printers  and  wit- 
nesses, and  lawful  fees  for  exemplifications  and  copies  of  papers 
necessarily  obtained  for  use  on  trials  in  cases  where  by  law  costs  are 


522  FEDEKAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

recoverable  in  favor  of  the  prevailing  party,  shall  be  taxed  by  a 
judge  or  clerk  of  the  court,  and  be  included  in  and  form  a  portion 
of  a  judgment  or  decree  against  the  losing  party.  Such  taxed  bills 
shall  be  filed  with  the  papers  in  the  cause. 

Bill  of  costs  to  be  sworn  to. — See.  984.  Before  any  bill  of 
costs  shall  be  taxed  by  any  judge  or  other  officer,  or  allowed  by  any 
officer  of  the  treasury,  in  favor  of  clerks,  marshals,  commissioners 
or  district  attorneys,  the  party  claiming  such  bill  shall  prove  by  his 
own  oath  or  that  of  some  other  person  having  a  knowledge  of  the 
facts,  to  be  attached  to  such  bill  and  filed  therewith,  that  the  ser- 
vices charged  therein  have  been  actually  and  necessarily  performed, 
as  therein  stated. 

Executions  to  run  in  all  the  districts  of  the  state. — Sec 
985.  All  writs  of  execution  upon  judgments  or  decrees  obtained 
in  a  circuit  or  district  court,  in  any  state  which  is  divided  into  two 
or  more  districts,  may  run  and  be  executed  in  any  part  of  such 
state ;  but  shall  be  issued  from  and  made  returnable  to  the  court 
wherein  the  judgment  was  obtained. 

Executions  in  favor  of  United  States  to  run  in  every 
STATE. — Sec.  986.  All  writs  of  execution  upon  judgments  obtained 
for  the  use  of  the  United  States,  in  any  court  thereof,  in  one  state, 
may  run  and  be  executed  in  any  other  state  or  in  any  territory,  but 
shall  be  issued  from  and  made  returnable  to  the  court  wherein  the 
judgment  was  obtained. 

Execution  stayed  on  conditions. — Sec.  987.  When  a  circuit 
court  enters  judgment  in  a  civil  action,  either  upon  a  verdict  or  on 
a  finding  of  the  court  upon  the  facts,  in  cases  where  such  finding  is 
allowed,  execution  may,  on  motion  of  either  party,  at  the  discretion 
of  the  court,  and  on  such  conditions  for  the  security  of  the  adverse 
party  as  it  may  judge  proper,  be  stayed  forty-two  days  from  the 
time  of  entering  judgment,  to  give  time  to  file  in  the  clerk's  office  of 
said  court  a  petition  for  a  new  trial.  If  such  petition  is  filed  within 
said  term  of  forty-two  days,  with  a  certificate  thereon  from  any 
judge  of  such  court  that  he  allows  it  to  be  filed,  which  certificate  he 
may  make  or  refuse  at  his  discretion,  execution  shall  of  course  be 
further  stayed  to  the  next  session  of  said  court.  If  a  new  trial  be 
granted,  the 'former  judgment  shall  be  thereby  rendered  void. 

Judgment-debtor;  continuance.  —  Sec.  988.  In  any  state 
where  judguaents  are  liens  upon  the  property  of  the  defendant,  and 


PROCEDURE.  523 

where,  by  the  laws  of  such  state,  defendants  are  entitled,  in  the 
courts  thereof,  to  a  stay  of  execution  for  one  term  or  more,  defend- 
ants in  actions  in  the  courts  of  the  United  States  held  therein 
shall  be  entitled  to  a  stay  of  execution  for  one  term. 

Execution  against  officers  of  revenue. — Sec.  989.  When  a 
recovery  is  had  in  any  suit  or  proceeding  against  a  collector  or  other 
officer  of  the  revenue  for  any  act  done  by  him  or  for  the  recovery 
of  any  money  exacted  by  or  paid  to  him,  and  by  him  paid  into  the 
treasury  in  the  performance  of  his  official  duty,  and  the  court  certi- 
fies that  there  was  probable  cause  for  the  act  done  by  the  collector 
or  other  officer,  or  that  he  acted  under  the  directions  of  the  Secre- 
tary of  the  Treasury,  or  other  proper  officer  of  the  government,  no 
execution  shall  issue  against  such  collector  or  other  officer,  but  the 
amount  so  recovered  shall,  upon  final  judgment,  be  provided  for  and 
paid  out  of  the  proper  appropriation  from  the  treasury. 

Imprisonment  for  debt. — Sec.  990.  No  person  shall  be  impris- 
oned for  debt  in  any  state,  on  process  issuing  from  a  court  of  the 
United  States,  where,  by  the  laws  of  such  state,  imprisonment  for 
debt  has  been  or  shall  be  abolished.  And  all  modifications,  condi- 
tions and  restrictions  upon  imprisonment  for  debt,  provided  by  the 
laws  of  any  state,  shall  be  applicable  to  the  process  issuing  from 
the  courts  of  the  United  States  to  be  executed  therein ;  and  the 
same  course  of  proceedings  shall  be  adopted  therein  as  may  be 
adopted  in  the  courts  of  such  state. 

Discharge  from  arrest  or  imprisonment. — Sec.  991.  When 
any  person  is  arrested  or  imprisoned  in  any  state,  on  mesne  pro- 
cess or  execution  issued  from  any  court  of  the  United  States,  in  any 
civil  action,  he  shall  be  entitled  to  discharge  fi'om  such  arrest  or 
imprisonment  in  the  same  manner  as  if  he  were  so  arrested  and  im- 
prisoned on  like  process  from  the  courts  of  such  state.  The  same 
oath  may  be  taken,  and  the  same  notice  thereof  shall  be  required, 
as  may  be  provided  by  the  laws  of  such  state,  and  the  same  course 
of  proceedings  shall  be  adopted  as  may  be  adopted  in  the  courts 
thereof.  But  all  such  proceedings  shall  be  had  before  any  one  of 
the  commissioners  of  the  circuit  court  for  the  district  where  the  de- 
fendant is  so  held. 

Privileges  of  jail  limits. — Sec.  99'2.  Persons  imprisoned  on 
process  issuing  from  any  court  of  the  United  States  in  civil  actions, 
as  well  at  the  suit  of  the  United  States  as  at  the  suit  of  any  per- 


524  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

son,  shall  be  entitled  to  the  same  privileges  of  the  yards  of  the  re- 
spective jails  as  persons  confined  in  like  cases  on  process  from  the 
courts  of  the  respective  states  are  entitled  to,  and  under  the  like 
regulations  and  restrictions. 

Goods  taken  on  a  fieri  facias,  how  appraised. — Sec.  993. 
When  it  is  required  by  the  laws  of  any  state  that  goods  taken  in 
execution  on  a  writ  of  fieri  facias  shall  be  appraised  before  the  sale 
thereof,  the  appraisers  appointed  under  the  authority  of  the  state 
may  appraise  goods  taken  in  execution  on  a  fieri  facias  issued  out 
of  any  court  of  the  United  States,  in  the  same  manner  as  if  such 
writ  had  issued  out  of  a  court  of  such  state.  And  the  marshal  in 
whose  custody  such  goods  may  be  shall  summon  the  appraisers,  in 
the  same  manner  as  the  sheriff  is,  by  the  laws  of  such  state,  re- 
quired to  summon  them  ;  and  if  the  appraisers,  being  duly  sum- 
moned, fail  to  attend  and  perform  the  duties  required  of  them,  the 
marshal  may  proceed  to  sell  such  goods  without  an  appraisement. 
When  such  appraisers  attend  they  shall  be  entitled  to  the  like  fees 
as  in  cases  of  appraisements  under  the  laws  of  the  state. 

Death  of  marshal  after  levy  or  sale. — Sec.  994.  When  a 
marshal  dies  or  is  removed  from  office,  or  the  term  of  his  commis- 
sion expires,  after  he  has  taken  in  execution,  under  process  from  a 
court  of  the  United  States,  any  lands,  tenements  or  hereditaments, 
and  before  sale  or  other  final  disposition  thereof,  the  like  process 
shall  issue  to  the  succeeding  marshal,  and  the  same  proceeding  shall 
be  had  as  if  such  marshal  had  not  died  or  been  removed  or  the  term 
of  his  commission  had  not  expired.  And  when  a  marshal  dies  or  is 
removed  from  office,  or  the  term  of  his  commission  expires,  after 
he  has  sold  any  lands,  tenements  or  hereditaments,  under  process 
from  a  court  of  the  United  States,  and  before  a  deed  for  the  same 
is  executed  by  him  to  the  purchaser,  such  court  may,  on  application 
by  the  purchaser,  or  by  the  plaintiff  at  whose  suit  the  sale  was 
made,  setting  forth  the  case  and  the  reason  why  the  title  was  not 
perfected  by  said  marshal,  order  the  marshal  for  the  time  being  to 
perfect  the  title  and  execute  a  deed  to  the  purchaser,  upon  his  pay- 
ing the  purchase-money  and  costs  remaining  unpaid. 

Moneys  paid  into  court. — Sec.  995.  All  moneys  paid  into  any 
court  of  the  United  States,  or  received  by  the  officers  thereof,  in 
any  cause  pending  or  adjudicated  in  such  court,  shall  be  forthwith 
deposited  with  the  treasurer,  an  assistant  treasurer  or  a  designated 


PROCEDURE,  525 

depositary  of  the  United  States,  in  the  name  and  to  the  credit  of 
such  court;  provided,  that  nothing  herein  shall  be  construed  to 
prevent  the  delivery  of  any  such  money  upon  security  according  to 
agreement  of  parties,  under  the  direction  of  the  court. 

Moneys  deposited,  how  withdrawn. — Sec.  996.  No  money 
deposited  as  aforesaid  shall  be  withdrawn  except  by  order  of  the 
judge  or  judges  of  said  courts  respectively,  in  term  or  in  vacation, 
to  be  signed  by  such  judge  or  judges,  and  to  be  entered  and  certi- 
fied of  record  by  the  clerk ;  and  every  such  order  shall  state  the 
cause  in  or  on  account  of  which  it  is  drawn. 


CHAPTER  XXVI. 

PROVISIONS    Ol"    THE    REVISED    STATUTES    ON    LIMITATIONS. 

§  527.  The  statutes  of  limitations. — We  insert  here  the  provisions 
of  the  statutes  on  limitations,  with  notes,  for  convenience  of  refer- 
ence, as  follows : 

Capital  offences. — Sec.  1043.  No  person  shall  be  prosecuted, 
tried  or  punished  for  treason  or  other  capital  offence,  willful  murder 
excepted,  unless  the  indictment  is  found  within  three  years  next 
after  such  treason  or  capital  offence  is  done  or  committed. 

Offences  not  capital. — Sec.  1044  (as  amended  by  act  of  April 
13,  1876,  ch.  56,  19  Stat.  32).  No  person  shall  be  prosecuted,  tried 
or  punished  for  any  offence,  not  capital,  except  as  provided  in  sec- 
tion 1046,  unless  the  indictment  is  found  or  the  information  is 
instituted  within  three  years  next  after  such  offence  shall  have 
been  committed.^ 


^  It  is  not  necessary  to  make  a  spe- 
cial plea  of  the  statute  of  limitations, 
1)ut  the  defence  may  be  under  a  plea 
of  not  guilty  :  United  States  v.  Brown, 
2  Lowell  26*7  ;  United  States  v.  White, 
5  Cr.  C.  C.  73  ;  United  States  v.  Cook, 
17  Wall.  168.  An  indictment  will  not 
be  quashed  although  it  is  apparent 
from  the  record  that  the  oifence  was 
committed  more  than  three  years  be- 
fore the  indictment  was  found,  as  the 
defence  of  the  statute  of  limitations 
cannot  be  set  up  by  a  demurrer: 
United  States  v.  Cook,  17  Wall.  168; 
United  States  v.  Watkins,  3  Cr.  C.  C. 
441  ;  United  States  v.  White,  5  Cr.  C. 
0.  368. _ 

The  indictment  may  set  forth  the 
true  time  of  the  commission  of  the  of- 
fence, and  any  facts  which  show  the 
defendant  cannot  avail  himself  of  the 
statute  as  a  defence,  even  though  the 
time  was  more  than  three  years  before 
the  finding  of  the  indictment.  Even 
if  the  indictment  does  not  show  that 
the  defendant  fled  from  justice,  it  may 
be  given  in  evidence  under  the  gen- 
eral issue :  Id. 


The  time  runs  from  the  commission 
of  the  oflFence  to  the  finding  of  an  in- 
dictment or  the  filing  of  an  informa- 
tion on  which  the  defendant  is  tried  ; 
thus  where  an  indictment  for  an  of- 
fence was  found  within  three  years, 
but  a  nolle  prosequi  was  entered  upon 
it,  and  after  the  lapse  of  more  than 
three  years  another  indictment  was 
found  for  the  same  offence,  it  was 
held  that  the  second  indictment  could 
not  be  considered  as  an  amendment  of 
the  first,  but  must  be  considered  as  the 
commencement  of  a  new  prosecution 
which  was  barred  by  the  statute : 
United  States  v.  Ballard,  3  McLean 
469.  This  provision  has  no  applica- 
tion to  offences  arising  under  the  rev- 
enue laws:  United  States  v.  Ilirsch, 
100  U.  S.  33.  Where  a  pensioner 
made  a  demand  upon  an  agent  for  a 
pension  more  than  three  years  before 
the  commencement  of  the  prosecution 
for  withholding  it,  this  section  was 
held  to  be  a  bar  to  the  prosecution  : 
United  States  v.  Irvine,  98  U.  S. 
450. 


LIMITATIONS.  527 

Fleeing  from  justice. — Sec.  1045.  Nothing  in  the  two  pre- 
ceding sections  shall  extend  to  any  person  fleeing  from  justice.^ 

Crimes  under  the  revenue  laws. — Sec.  1046.  No  person 
shall  be  prosecuted,  tried  or  punished  for  any  crime  arising  under 
the  revenue  laws  or  the  slave-trade  laws  of  the  United  States, 
unless  the  indictment  is  found  or  the  information  is  instituted  within 
five  years  next  after  the  committing  of  such  crime. ^ 

The  act  of  June  22,  1874,  ch.  391,  §  22,  18  Stat.  190,  provides : 
That  no  suit  or  action  to  recover  any  pecuniary  penalty  or  forfeit- 
ure of  property  accruing  under  the  customs  revenue  laws  of  the 
United  States  shall  be  instituted  unless  such  suit  or  action  shall 
be  commenced  within  three  years  after  the  time  when  such 
penalty  or  forfeiture  shall  have  accrued ;  provided,  that  the 
time  of  the  absence  from  the  United  States  of  the  person  subject 
to  such  penalty  or  forfeiture,  or  of  any  concealment  or  absence 
of  the  property,  shall  not  be  reckoned  within  this  period  of  limit- 
ation. 

Penalties  and  forfeitures. — Sec.  1047.  No  suit  or  prosecu- 
tion for  any  penalty  or  forfeiture,  pecuniary  or  otherwise,  accruing 
under  the  laws  of  the  United  States,  shall  be  maintained,  except  in 
cases  where  it  is  otherwise  specially  provided,  unless  the  same  is 
commenced  within  five  years  from  the  time  when  the  penalty  or  for- 
feiture accrued ;  provided.,  that  the  person  of  the  off"ender,  or  the 
property  liable  for  such  penalty  or  forfeiture,  shall,  within  the  same 
period,  be  found  within  the  United  States;  so  that  the  proper  pro- 
cess therefor  may  be  instituted  and  served  against  such  person  or 
property.^ 

1  The  term   "fleeini>;  from  justice"  conduce   to   the  fiscal  wealth   of   the 

means  to   leave   one's   home   or  resi-  country  :  United  States  v.  Mayo,  1  Gal- 

dence  or  known  place  of  abode  with  lis  377  ;    United    States  v.  Norton,  91 

intent  to  avoid  detection  and  punish-  U.  S.  566 ;    United  States  v.  Hirsch, 

ment  for  some  offence    against    the  100  U.  S.  33. 

United  States,  and  not  merely  to  avoid  This  section  embraces  a  crime  cre- 

process,  or  avoid  the  criminal  justice  ated  by  a  statute  relating  to  internal 

of  the  state:  United  States  t).  0' Brian,  revenue:  United  States  v.  Dustin,   15 

3  Dill.  381  ;  United  States  v.  White,  5  I.  R.  R.  30 ;   United  States  v.  Wright, 

Cr.  C.  C.  116.      A  person  may  come  11  I,  R.  R.  35;  In  re  Adolph   Lands- 

within   this   provision  who   does  not  berg,  11    I.  R.  R.  150;   McGlinchy  v. 

leave  the  state  or  district,  as  by  secret-  United  States,  4  Cliff.  312  ;  Perkins  v. 

ing  himself  within  it:  Id.  United  States,  4  Cliff.  321.  But  it  does 

^  The  term  "revenue  laws"  embra-  not  embrace  crimes  under  the  act  to  es- 
ces  only  such  statutes  as  have  for  their  tablish  the  postal  money-order  system  : 
direct  and  avowed  purpose  the  creat-  United  Stalest).  Norton,  91  U.  S.  566. 
ing  and  securing  of  revenue,  and  not  ^  The  word  "penalty"  in  this  sec- 
laws   whose   indirect   operation    may  tion  has  been  held  to  mean  the  same 


628 


FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 


Parties  beyond  the  reach  of  process  during  rebellion. — 
Sec.  1048.  In  all  cases  where,  during  the  late  rebellion,  any  per- 
son could  not,  by  reason  of  resistance  to  the  execution  of  the  laws 
of  the  United  States,  or  of  the  interruption  of  the  ordinary  course 
of  judical  proceedings,  be  served  with  process  for  the  commence- 
ment of  any  action,  civil  or  criminal,  which  had  accrued  against 
him,  the  time  during  which  such  person  was  beyond  the  reach  of 
legal  process  shall  not  be  taken  as  any  part  of  the  time  limited  by 
law  for  the  commencement  of  such  action.^ 


as  fine,  that  is,  a  fixed  pecuniary 
mulct  incurred  by  a  violation  of  some 
law  :  In  7-e  Landsberg,  11  I.  R.  R.  150  ; 
and  it  applies  to  an  action  of  debt  to 
recover  a  penalty  as  well  as  to  an  in- 
formation or  indictment:  Adams  v. 
Woods,  2  Cr.  336  ;  and  to  suits  in 
personam  and  in  rem :  Hatch  v.  The 
Boston,  3  Fed.  Rep.  807.  See  also 
Stimpson  v.  Pond,  2  Curt.  502  •, 
United  States  v.  Brown,  2  Low. 
267.  But  it  does  not  apply  to  an  ac- 
tion for  the  penalty  of  a  bond  :  Ray- 
mond V.  United  States,  14  Blatch.  51. 
The  action  of  a  master  of  a  vessel 
to  recover  a  penalty  for  refusal  or 
neglect  to  deposit  his  papers  with  the 
consul  is  within  the  provisions  of  this 
section :  Parsons  v.  Hunter,  2  Sum. 
419  ;  and  for  penalties  and  forfeitures 
arising  under  customs  laws  :  In  re 
Landsberg,  11  1.  R.  R.  150;  but  the 
statute  will  not  bar  a  right  of  action 
secured  to  the  United  States  by  an  act 
of  Congress  :  Perkins  v.  United  States, 


4    Clifi".   312;     McGlinchy  v.  United 
States,  4  Cliff.  321. 

^  This  section  is  not  a  statute  of  lim- 
itation, for  it  does  not  specify  any  time 
within  which  the  action  must  be  com- 
menced, nor  does  it  apply  to  actions  be- 
tween persons  who  resided  in  the  Con- 
federate States :  Graydon  v.  Sweet,  1 
Woods  418 ;  Lockhart  v.  Horn,  1 
Woods  569.  It  requires  all  the  time 
to  be  deducted  from  the  ordinary  lim- 
itation during  which  the  suit  could 
not  be  prosecuted  by  reason  of  resist- 
ance to  the  laws  or  interruption  of 
judicial  proceedings,  whether  before 
or  after  the  passage  of  the  act ;  and 
if  the  defendant  was  in  some  place 
within  the  Confederate  States  where 
the  judicial  tribunals  were  not  inter- 
rupted, but  were  open  for  the  prose- 
cution of  suits,  and  process  could  have 
been  served  upon  the  defendant,  the 
general  rule  of  limitation  would  ap- 
ply: United  States  i\  AViley,  11  Wall. 
508  ;  Britton  v.  Butler,  11  Blatch.  350. 


RULES 

OF    THE 

SUPREME  COURT  OF  THE  UNITED  STATES. 


Rule  1. — Clerk. 


1.  Office. — The  clerk  of  this  court  shall  reside  and  keep  the 
office  at  the  seat  of  the  national  government,  and  he  shall  not  prac- 
tice either  as  an  attorney  or  counsellor  in  this  court  or  any  other 
court  while  he  shall  continue  to  be  clerk  of  this  court. 

2.  Duties. — The  clerk  shall  not  permit  any  original  record  or 
paper  to  be  taken  from  the  court-room,  or  from  the  office,  without 
an  order  from  the  court. 

Rule  2. — Attorneys. 

1.  Admission  of. — It  shall  be  requisite  to  the  admission  of  at- 
torneys or  counsellors  to  practice  in  this  court,  that  they  shall  have 
been  such  for  three  years  past  in  the  supreme  courts  of  the  states 
to  which  they  respectively  belong,  and  that  their  private  and  pro- 
fessional character  shall  appear  to  be  fair. 

2.  Oath. — They  shall  respectively  take  and  subscribe  the  follow- 
ing oath  or  affirmation,  viz. : 

I,  ,  do  solemnly  swear  (or  affirm,  as  the  case  may  be) 

that  I  will  demean  myself,  as  an  attorney  and  counsellor  of  this 
court,  uprightly  and  according  to  law ;  and  that  I  will  support  the 
Constitution  of  the  United  States. 

Women  may  be  admitted  to  practice. — The  act  of  February 
15, 1879,  provides  :  That  any  woman  who  shall  have  been  a  member 
of  the  bar  of  the  highest  court  of  any  state  or  territory,  or  of  the 
supreme  court  of  the  District  of  Columbia,  for  the  space  of  three 
years,  and  shall  have  maintained  a  good  standing  before  such  court, 
and  who  shall  be  a  person  of  good  moral  character,  shall,  on  mo- 
tion, and  the  production  of  such  record,  be  admitted  to  practice 
before  the  Supreme  Court  of  the  United  States. 
34 


530         federal  pleading,  practice  and  procedure. 

Rule  3. — Practice. 

How  REGULATED. — Tliis  court  consider  the  practice  of  the  courts 
of  King's  Bench  and  of  Chancery,  in  England,  as  affording  out- 
lines for  the  practice  of  this  court;  and  they  will  from  time  to 
time  make  such  alterations  therein  as  circumstances  may  render 

necessary. 

Rule  4. — Bill  of  Exceptions. 

What  required  of. — Hereafter  the  judges  of  the  circuit  and 
district  courts  shall  not  allow  any  bill  of  exceptions,  which  shall 
contain  the  charge  of  the  court  at  large  to  the  jury  in  trials  at  com- 
mon law,  upon  any  general  exception  to  the  whole  of  such  charge. 
But  the  party  excepting  shall  be  required  to  state  distinctly  the 
several  matters  of  law  in  such  charge  to  which  he  excepts ;  and 
such  matters  of  law,  and  those  only,  shall  be  inserted  in  the  bill  of 
exceptions,  and  allowed  by  the  court. 

Rule  5. — Process. 

1.  In  name  of  the  President. — All  process  of  this  court  shall 
be  in  the  name  of  the  President  of  the  United  States. 

2.  Service  on  state. — Wben  process  at  common  law,  or  in 
equity,  shall  issue  against  a  state,  the  same  shall  be  served  on  the 
governor,  or  chief  executive  magistrate,  and  attorney-general  of 
such  state. 

3.  Subpcena,  service  of, — Process  of  subpoena  issuing  out  of 
this  court,  in  any  suit  in  equity,  shall  be  served  on  the  defendant 
sixty  days  before  the  return  day  of  the  said  process ;  and  if  the 
defendant,  on  such  service  of  the  subpoena,  shall  not  appear  at  the 
return  day  contained  therein,  the  complainant  shall  be  at  liberty  to 
proceed  ex  parte. 

Rule  6. — Motions. 

1,  To  BE  IN  writing. — All  motions  hereafter  made  to  the  court 
shall  be  reduced  to  writing,  and  shall  contain  a  brief  statement  of 
the  facts  and  objects  of  the  motion. 

One  hour  on  each  side  shall  be  allowed  to  the  argument  of  a  mo- 
tion, and  no  more,  without  special  leave  of  the  court  granted  before 
the  argument  begins.     [Amended  November  27,  1876.] 

2.  Notice  of. — No  motion  to  dismiss,  except  on  special  assign- 
ment by  the  court,  shall  be  heard  unless  previous  notice  has  been 


GENERAL   RULES.  531 

given  to  the  adverse  party  or  the  counsel  or  attorney  of  such 
party. 

3.  How  TO  BE  SUBMITTED. — All  motions  to  dismiss  appeals  and 
•writs  of  error,  except  motions  to  docket  and  dismiss  under  the  9th 

rule,  must  be  submitted  in  the  first  instance  on  printed  briefs  or 
arguments.  If  the  court  desires  further  argument  on  that  subject, 
it  will  be  ordered  in  connection  with  the  hearing  on  the  merits. 
The  party  moving  to  dismiss  shall  serve  notice  of  the  motion,  with 
a  copy  of  his  brief  or  argument,  on  the  counsel  for  plaintiff  in  error 
or  appellant  of  record  in  this  court  at  least  three  weeks  before  the 
time  fixed  for  submitting  the  motion,  in  all  cases,  except  where  the 
counsel  to  be  notified  resides  west  of  the  Rocky  Mountains,  in  which 
case  the  notice  shall  be  at  least  thirty  days. 

There  may  be  united  with  a  motion  to  dismiss  a  writ  of  error  or 
appeal  a  motion  to  afiirm,  on  the  ground  that,  although  the  record 
may  show  that  this  court  has  jurisdiction,  it  is  manifest  the  appeal 
or  writ  was  taken  for  delay  only,  or  that  the  question  on  which  the 
jurisdiction  depends  is  so  frivolous  as  not  to  need  further  argument. 

4.  Service  by  mail,  proof  of. — Afiidavit  of  the  deposit  in  the 
mail  of  the  notice  and  brief  to  the  proper  address  of  the  counsel  to 
be  served,  duly  post-paid,  at  such  time  as  to  reach  him  by  due  course 
of  mail  the  three  weeks  or  thirty  days  before  the  time  fixed  by  the 
notice,  will  be  regarded  as  prima  facie  evidence  of  service  on  coun- 
sel who  reside  without  the  District  of  Columbia.  On  proof  of  such 
service  the  motion  will  be  considered,  unless  for  satisfactory  reasons 
further  time  be  given  by  the  court  to  either  party. 

5.  Motion  day. — The  court  will  not  hear  arguments  on  Satur- 
day (unless  for  special  cause  it  shall  order  to  the  contrary),  but  will 
devote  that  day  to  the  other  business  of  the  court.  The  motion 
day  shall  be  Monday  of  each  week,  in  lieu  of  Friday,  and  motions 
not  required  by  the  rules  of  the  court  to  be  put  on  the  docket  shall 
be  entitled  to  preference  immediately  after  the  reading  of  opinions, 
if  such  motions  shall  be  made  before  the  court  shall  have  entered 
upon  the  hearing  of  a  cause  upon  the  docket. 

Rule  7. — Law  Library. 

1.  Use  of  books. — During  the  session  of  the  court  any  gentle- 
man of  the  bar  having  a  cause  on  the  docket,  and  wishing  to  use 
any  book  or  books  in  the  law  library,  shall  be  at  liberty,  upon  ap- 


532  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

plication  to  the  clerk  of  the  court,  to  receive  an  order  to  take  the 
same  (not  exceeding  at  any  one  time  three)  from  the  library,  he 
being  thereby  responsible  for  the  due  return  of  the  same  within  a 
reasonable  time,  or  when  required  by  the  clerk.  And  it  shall  be  ■ 
the  duty  of  the  clerk  to  keep,  in  a  book  for  that  purpose,  a  record 
of  all  books  so  delivered,  which  are  to  be  charged  against  the  party 
receiving  the  same.  And  in  case  the  same  shall  not  be  so  returned, 
the  party  receiving  the  same  shall  be  responsible  for  and  forfeit  and 
pay  twice  the  value  thereof;  as  also  one  dollar  per  day  for  each 
day's  detention  beyond  the  limited  time. 

2.  CoNFERENCE-ROOM. — The  clerk  shall  take  charge  of  the  books 
of  the  court,  together  with  such  of  the  duplicate  law  books  as  Con- 
gress may  direct  to  be  transferred  to  the  court,  and  arrange  them 
in  the  conference-room,  which  he  shall  have  fitted  up  in  a  proper 
manner ;  and  he  shall  not  permit  such  books  to  be  taken  therefrom 
by  any  one  except  the  judges  of  the  court. 

3.  Kecord  DEPOSITED. — The  clerk  shall  deposit  in  the  law  li- 
brary, to  .be  there  carefully  preserved,  one  copy  of  the  printed 
record  in  every  case  submitted  to  the  court  for  its  consideration, 
and  of  all  printed  motions,  briefs  or  arguments  filed  therein. 

Rule  8. — Writ  of  Error  and  Return  Day. 

1.  Return,  how  made. — The  clerk  of  the  court  to  which  any 
writ  of  error  shall  be  directed  may  make  return  of  the  same  by 
transmitting  a  true  copy  of  the  record,  and  of  all  proceedings  in 
the  cause,  under  his  hand  and  the  seal  of  the  court. 

2.  Opinions  annexed  to  record. — In  all  cases  brought  to  this 
court  by  writ  of  error  or  appeal,  to  review  any  judgment  or  decree, 
the  clerk  of  the  court  by  which  such  judgment  or  decree  was  ren- 
dered shall  annex  to  and  transmit  with  the  record  a  copy  of  the 
opinion  or  opinions  filed  in  the  case. 

3.  What  to  be  filed. — No  cause  will  hereafter  be  heard  until  a 
complete  record,  containing  in  itself,  without  references  aliunde,  all 
the  papers,  exhibits,  depositions  and  other  proceedings  which  are 
necessary  to  the  hearing  in  this  court,  shall  be  filed. 

4.  Original  papers. — Whenever  it  shall  be  necessary  or  proper, 
in  the  opinion  of  the  presiding  judge  in  any  circuit  court,  or  dis- 
trict court  exercising  circuit  court  jurisdiction,  that  original  papers 
of  any  kind  should  be  inspected  in  this  court,  upon  appeal  or  writ 


GENERAL  RULES.  "533 

of  error,  such  presiding  judge  may  make  such  rule  or  order  for  the 
safe  keeping,  transporting  and  return  of  such  original  papers  as  to 
him  may  seem  proper ;  and  this  court  will  receive  and  consider 
such  original  papers  in  connection  with  the  transcript  of  the  pro- 
ceedings. 

5.  Return  day  of  writ. — In  cases  where  final  judgment  is  ren- 
dered more  than  thirty  days  before  the  first  day  of  the  next  term 
of  this  court,  the  writ  of  error  and  citation,  if  taken  before,  must 
be  returnable  on  the  first  day  of  said  term  and  be  served  before  that 
day ;  but  in  cases  where  the  judgment  is  rendered  less  than  thirty 
days  before  the  first  day,  the  writ  of  error  and  citation  may  be 
made  returnable  on  the  third  Monday  of  the  said  term  and  be 
served  before  that  day. 

Rule  9. — Docketing  Cases. 

1.  Duties  of  appellant. — In  all  cases  where  a  writ  of  error  or 
an  appeal  shall  be  brought  to  this  court  from  any  judgment  or  de- 
cree rendered  thirty  days  before  the  commencement  of  the  term,  it 
shall  be  the  duty  of  the  plaintifi"  in  error  or  appellant,  as  the  case 
may  be,  to  docket  the  cause  and  file  the  record  thereof  with  the 
clerk  of  this  court  within  the  first  six  days  of  the  term  ;  and  if  the 
writ  of  error  or  appeal  shall  be  brought  from  a  judgment  or  decree 
rendered-  less  than  thirty  days  before  the  commencement  of  the 
term,  it  shall  be  the  duty  of  the  plaintiif  in  error  or  appellant  to 
docket  the  cause  and  file  the  record  thereof  with  the  clerk  of  this 
court  within  the  first  thirty  days  of  the  term  ;  and  if  the  plaintiif 
in  error  or  appellant  shall  fail  to  comply  with  this  rule,  the  defend- 
ant in  error  or  appellee  may  have  the  case  docketed  and  dismissed 
upon  producing  a  certificate  from  the  clerk  of  the  court  wherein  the 
judgment  or  decree  was  rendered,  stating  the  cause,  and  certifying 
that  such  writ  of  error  or  appeal  has  been  duly  sued  out  and  al- 
lowed. And  in  no  case  shall  the  plaintiff  in  error  or  appellant  be 
entitled  to  docket  the  cause  and  file  the  record  after  the  same  shall 
have  been  docketed  and  dismissed  under  this  rule,  unless  by  order 
of  the  court. 

2.  Right  of  appellee. — But  the  defendant  in  error  or  appellee 
may,  at  his  option,  docket  the  cause  and  file  a  copy  of  the  record 
with  the  clerk  of  the  court ;  and  if  the  case  is  docketed,  and  a  copy 
of  the  record  filed  with  the  clerk  of  this  court  by  the  plaintiff  in 


534  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

error  or  appellant,  within  the  periods  of  time  above  limited  and 
prescribed  by  this  rule,  or  by  the  defendant  in  error  or  appellee  at 
any  time  thereafter  during  the  term,  the  case  shall  stand  for  argu- 
ment at  the  term. 

3.  Appearance  of  counsel. — Upon  the  filing  of  the  transcript 
of  a  record  brought  up  by  writ  of  error  or  appeal,  the  appearance 
of  the  counsel  for  the  plaintiff  in  error  or  appellant  shall  be  entered. 

4.  Time  extended. — In  all  cases  where  the  period  of  thirty  days 
is  mentioned  in  this  rule  it  shall  be  extended  to  sixty  days  in  writs 
of  error  and  appeals  from  California,  Oregon,  Washington,  New 
Mexico,  Utah,  Nevada,  Arizona,  Montana  and  Idaho. 

Rule  10. — Security  for  Costs. 

1.  Bond  for  costs. — In  all  cases  the  plaintiff  in  error  or  appel- 
lant, on  docketing  a  cause  and  filing  the  record,  shall  enter  into  an 
undertaking  to  the  clerk,  with  surety  to  his  satisfaction  for  the  pay- 
ment of  his  fee's,  or  otherwise  satisfy  him  in  that  behalf. 

Printing  Records. 

2.  Costs  of  printing. — In  all  cases  the  clerk  shall  have  twenty 
copies  of  the  record  printed  for  the  court,  and  the  cost  of  printing 
shall  be  charged  to  the  government  in  the  expenses  of  the  court. 
(Amended  Nov.  1,  1875.) 

3.  Duty  of  clerk. — The  clerk  shall  furnish  copies  for  the 
printer,  shall  supervise  the  printing  and  shall  take  care  of  and  dis- 
tribute the  printed  copies  to  the  judges,  the  reporter  and  the  par- 
ties, from  time  to  time,  as  required. 

4.  Costs  for  manuscript. — In  each  case  fees  shall  be  charged 
in  the  taxable  costs  for  but  one  manuscript  copy  of  the  record,  and 
that  shall  be  to  the  party  bringing  the  cause  into  court,  unless  the 
court  shall  otherwise  direct.     (Amended  Nov.  27,  1876.) 

5.  Who  entitled  to  copy. — In  all  cases  the  clerk  shall  deliver 
a  copy  of  the  printed  record  to  each  party  ;  and  in  cases  of  dis- 
missal, reversal  or  aflSrmance  with  costs  the  fees  for  the  said  manu- 
script copy  of  the  record  shall  be  taxed  against  the  party  against 
whom  costs  are  given,  and  which  charge  includes  the  charge  for  the 
copy  furnished  him. 

6.  Fee  in  case  of  dismissal. — In  all  cases  of  dismissal  for 
want  of  jurisdiction  the  fees  for  the  copy  shall  be  taxed  against  the 


GENERAL   RULES.  535 

party  bringing  the  cause  into  court,  unless  the  court  shall  other- 
wise direct.     (Amended  May  8,  1876.) 

Attachment  for  Costs. 

7.  When  to  issue. — Upon  the  clerk  of  this  court  producing  sat- 
isfactory evidence,  by  affidavit  or  the  acknowledgment  of  the  par- 
ties or  their  sureties,  of  having  served  a  copy  of  the  bill  of  fees  due 
by  them,  respectively,  in  this  court,  on  such  parties  or  their  sure- 
ties, an  attachment  shall  issue  against  such  parties  or  sureties,  re- 
spectively, to  compel  payment  of  the  said  fees. 

Rule  11. — Translations. 

How  supplied. — Whenever  any  record,  transmitted  to  this  court 
upon  a  writ  of  error  or  appeal,  shall  contain  any  document,  paper, 
testimony  or  other  proceeding  in  a  foreign  language,  and  the  record 
does  not  also  contain  a  translation  of  such  document,  paper,  testi- 
mony or  other  proceeding,  made  under  the  authority  of  the  inferior 
court,  or  admitted  to  be  correct,  the  record  shall  not  be  printed, 
but  the  case  shall  be  reported  to  this  court  by  the  clerk,  and  the 
court  will  thereupon  remand  it  to  the  inferior  court  in  order  that  a 
translation  may  be  there  supplied  and  inserted  in  the  record. 

Rule  12. — Evidence. 

1.  Further  proof. — In  all  cases  where  further  proof  is  ordered 
by  the  court,  the  depositions  which  shall  be  taken  shall  be  by  a 
commission  to  be  issued  from  this  court  or  from  any  circuit  court 
of  the  United  States. 

2.  In  admiralty  cases. — In  all  cases  of  admiralty  and  mari- 
time jurisdiction,  where  new  evidence  shall  be  admissible  in  this 
court,  the  evidence  by  testimony  of  witnesses  shall  be  taken  under 
a  commission  to  be  issued  from  this  court,  or  from  any  circuit  court 
of  the  United  States,  under  the  direction  of  any  judge  thereof; 
and  no  such  commission  shall  issue  but  upon  interrogatories  to  be 
filed  by  the  party  applying  for  the  commission,  and  notice  to  the 
opposite  party  or  his  agent  or  attorney,  accompanied  with  a  copy 
of  the  interrogatories  so  filed,  to  file  cross-interrogatories  within 
twenty  days  from  the  service  of  such  notice ;  provided,  hoivever, 
that  nothing  in  this  rule  shall  prevent  any  party  from  giving  oral 
testimony  in  open  court  in  cases  where,  by  law,  it  is  admissible. 


536         federal  pleading,  practice  and  procedure. 

Rule  13. — Deeds,  etc..  Objections  to,  Admissions. 

Objections  in  equity  and  admiralty. — In  all  cases  of  equity 
and  admiralty  jurisdiction  heard  in  this  court,  no  objection  shall 
hereafter  be  allowed  to  be  taken  to  the  admissibility  of  any  deposi- 
tion, deed,  grant  or  other  exhibit  found  in  the  record  as  evidence, 
unless  objection  was  taken  thereto  in  the  court  below  and  entered 
of  record ;  but  the  same  shall  otherwise  be  deemed  to  have  been 
admitted  by  consent. 

Rule  14. — Certiorari. 

Record,  how  obtained. — No  certiorari  for  diminution  of  the 
record  shall  be  hereafter  awarded  in  any  cause,  unless  a  motion 
therefor  shall  be  made  in  writing,  and  the  facts  on  which  the  same 
is  founded  shall,  if  not  admitted  by  the  other  party,  be  verified  by 
affidavit.  And  all  motions  for  such  certiorari  shall  be  made  at  the 
first  term  of  the  entry  of  the  cause;  otherwise  the  same  shall  not 
be  granted,  unless  upon  special  cause  shown  to  the  court  account- 
ing satisfactorily  for  the  delay. 

Rule  15. — Death  of  a  Party. 

1.  Abatement  and  revivor. — Whenever,  pending  a  writ  of 
error  or  appeal  in  this  court,  either  party  shall  die,  the  proper  rep- 
resentatives in  the  personalty  or  realty  of  the  deceased  party,  ac- 
cording to  the  nature  of  the  case,  may  voluntarily  come  in  and  be 
admitted  parties  to  the  suit,  and  thereupon  the  cause  shall  be  heard 
and  determined  as  in  other  cases  ;  and  if  such  representatives  shall 
not  voluntarily  become  parties,  then  the  other  party  may  suggest 
the  death  on  the  record,  and  thereupon,  on  motion,  obtain  an  order 
that  unless  such  representatives  shall  become  parties  within  the  first 
ten  days  of  the  ensuing  term,  the  party  moving  for  such  order,  if 
defendant  in  error,  shall  be  entitled  to  have  the  writ  of  error  or 
appeal  dismissed ;  and  if  the  party  so  moving  shall  be  plaintiff  in 
error,  he  shall  be  entitled  to  open  the  record,  and  on  hearing  have 
the  same  reversed  if  it  be  erroneous ;  provided,  Jiowever,  that  a 
copy  of  every  such  order  shall  be  printed  in  some  newspaper  at  the 
seat  of  government  in  which  the  laws  of  the  United  States  shall 
be  printed  by  authority,  for  three  successive  weeks,  at  least  sixty 
days  before  the  beginning  of  the  term  of  the  Supreme  Court  then 
next  ensuincp. 


GENERAL   RULES.  537 

2.  When  action  abates. — When  the  death  of  a  party  is  sug- 
gested, and  the  representatives  of  the  deceased  do  not  appear  by 
the  tenth  day  of  the  second  term  next  succeeding  the  suggestion, 
and  no  measures  are  taken  by  the  opposite  party  within  that  time 
to  compel  their  appearance,  the  case  shall  abate. 

3.  When  appellee  is  dead. — When  either  party  to  a  suit  in 
the  circuit  courts  of  the  United  States  shall  desire  to  prosecute  a 
writ  of  error  or  appeal  to  the  Supreme  Court  of  the  United  States 
from  any  final  judgment  or  decree  rendered  in  said  circuit  courts, 
and  at  the  time  of  suing  out  such  writ  of  error  or  appeal  the  other 
party  to  the  suit  shall  be  dead,  and  have  no  proper  representative 
within  the  jurisdiction  of  the  court  which  rendered  such  final  judg- 
ment or  decree,  so  that  the  suit  cannot  be  revived  in  that  court,  but 
shall  have  a  proper  representative  in  some  state  or  territory  of  the 
United  States,  the  party  desiring  such  writ  of  error  or  appeal  may 
procure  the  same  and  may  supersede  or  stay  proceedings  on  such 
judgment  or  decree  in  the  same  manner  as  is  now  allowed  by  law  in 
other  cases,  and  shall  thereupon  proceed  with  such  writ  of  error  or 
appeal  as  in  other  cases.  And  within  thirty  days  after  the  com- 
mencement of  the  court  to  which  such  writ  of  error  or  appeal  is 
returnable,  the  plaintiff  in  error,  or  appellant,  shall  make  a  sug- 
gestion to  the  court,  supported  by  affidavit,  that  the  said  party  was 
dead  when  the  writ  of  error  or  appeal  was  taken  or  sued  out,  and 
had  no  proper  representative  within  the  jurisdiction  of  the  court 
which  rendered  said  judgment  or  decree,  so  that  the  suit  could  not 
be  revived  in  that  court,  and  that  said  party  had  a  proper  repre- 
sentative in  some  state  or  territory  of  the  United  States,  and  stat- 
ing therein  the  name  and  character  of  such  representative,  and  the 
state  or  territory  in  which  such  representative  resides ;  and  upon 
such  suggestion  he.  may,  on  motion,  obtain  an  order  that,  unless 
such  representative  shall  make  himself  a  party  within  the  first  ten 
days  of  the  ensuing  term  of  the  court,  the  plaintiff  in  error  or  ap- 
pellant shall  be  entitled  to  open  the  record,  and  on  hearing  have 
the  judgment  or  decree  reversed,  if  the  same  be  erroneous;  jpro- 
vided,  however,  that  a  proper  citation  reciting  the  substance  of 
such  order  shall  be  served  upon  such  representative,  either  person- 
ally or  by  being  left  at  his  residence,  at  least  sixty  days  before  the 
beginning  of  the  term  of  the  Supreme  Court  then  next  ensuing  ; 
and  provided  also,  that  in  every  such  case,  if  the  representative  of 


538  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

the  deceased  party  does  not  appear  by  the  tenth  day  of  the  term 
next  succeeding  said  suggestion,  and  the  measures  above  provided 
to  compel  the  appearance  of  such  representative  have  not  been 
taken  within  the  time  as  above  required,  by  the  opposite  party,  the 
case  shall  abate ;  and  provided  also,  that  the  said  representative 
may,  at  any  time  before  or  after  said  suggestion,  come  in  and  be 
made  a  party  to  the  suit,  and  thereupon  the  cause  shall  proceed, 
and  be  heard  and  determined  as  in  other  cases. 

Rule  16. — No  Appearance  for  Plaintiff. 

At  TRIAL. — Where  there  is  no  appearance  for  the  plaintiff  when 
the  case  is  called  for  trial,  the  defendant  may  have  the  plaintiff 
called  and  dismiss  the  writ  of  error,  or  may  open  the  record  and 
pray  for  an  affirmance. 

Rule  17. — No  Appearance  for  Defendant. 

At  trial. — Where  the  defendant  fails  to  appear  when  the  cause 
shall  be  called  for  trial,  the  court  may  proceed  to  hear  an  argument 
on  the  part  of  the  plaintiff,  and  to  give  judgment  according  to  the 
right  of  the  cause. 

Rule  18. — Non-appearance  of  either  Party. 

At  call  of  docket. — When  a  case  is  reached  in  the  regular 
call  of  the  docket,  and  no  appearance  is  entered  for  either  party, 
the  case  shall  be  dismissed  at  the  costs  of  the  plaintiff. 

Rule  19. — Neither  Party  Ready. 

At  second  term,  dismissal. — When  a  case  is  called  for  argu- 
ment at  two  successive  terms,  and  upon  the  call  at  the  second  term 
neither  party  is  prepared  to  argue  it,  it  shall  be  dismissed  at  the 
costs  of  the  plaintiff,  unless  sufficient  cause  is  shown  for  further 
postponement. 

Rule  20. — Printed  Arguments  and  Briefs. 

1.  Distribution  of  copies. — In  all  cases  brought  here  on  ap- 
peal, writ  of  error  or  otherwise,  the  court  will  receive  printed 
arguments  without  regard  to  the  number  of  the  case  on  the  docket,  if 
the  counsel  on  both  sides  shall  choose  so  to  submit  the  same  within 
the  first  ninety  days  of  the  term ;  but  twenty  copies  of  the  argu- 


GENERAL    RULES.  539 

ments,  signed  by  attorneys  or  counsellors  of  this  court,  must  be  first 
filed:  ten  of  these  copies  for  the  court,  two  for  the  reporter,  three 
to  be  retained  by  the  clerk,  and  the  residue  for  counsel. 

2.  Effect  of  filing  argument. — When  a  case  is  reached  in  the 
regular  call  of  the  docket,  and  a  printed  argument  shall  be  filed  for 
one  or  both  parties,  the  case  shall  stand  on  the  same  footing  as  if 
there  were  an  appearance  by  counsel. 

3.  When  oral  argument. — When  a  case  is  taken  up  for  trial 
upon  the  regular  call  of  the  docket,  and  argued  orally  in  behalf  of 
only  one  of  the  parties,  no  printed  argument  will  be  received  unless 
it  is  filed  before  the  oral  argument  begins,  and  the  court  will  pro- 
ceed to  consider  and  decide  the  case  upon  the  ex  parte  argument. 

4.  No  brief  received  after  argument. — No  brief  or  argu- 
ment will  be  received,  either  through  the  clerk  or  otherwise,  after  a 
case  has  been  argued  or  submitted,  except  upon  leave  granted  in 
open  court  after  notice  to  opposing  counsel. 

Rule  21. — Counsel  Limited. 

1.  Two  counsel. — Only  two  counsel  shall  be  heard  for  each 
party  on  the  argument  of  a  cause. 

2.  Two  hours. — Two  hours  on  each  side  shall  be  allowed  to  the 
argument,  and  no  more,  without  special  leave  of  the  court,  granted 
before  the  argument  begins.  The  time  thus  allowed  may  be  appor- 
tioned between  the  counsel  on  the  same  side  at  their  discretion ; 
provided  akvays,  that  a  fair  opening  of  the  case  shall  be  made  by 
the  party  having  the  opening  and  closing  arguments. 

3.  Counsel  for  plaintiff. — The  counsel  for  the  .plaintiff  in 
error,  or  appellant,  shall  file  with  the  clerk  of  the  court,  at  least 
six  days  before  the  case  is  called  for  argument,  twenty  copies  of  a 
printed  brief,  one  of  which  shall,  on  application,  be  furnished  to 
each  of  the  counsel  engaged  upon  the  opposite  side. 

4.  Contents  of  brief. — This  brief  shall  contain,  in  the  order 
here  stated — 

(1)  A  concise  abstract  or  statement  of  the  case,  presenting  suc- 
cinctly the  questions  involved  and  the  manner  in  which  they  are 
raised. 

(2)  An  assignment  of  the  errors  relied  upon,  which  in  cases 
brought  up  by  writ  of  error  shall  set  out  separately  and  specifically 
each  error  asserted  and  intended  to  be  urged,  and  in  cases  brought 


540  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

up  by  appeal,  the  assignment  shall  state,  as  specifically  as  may  be, 
in  what  the  decree  is  alleored  to  be  erroneous.  If  error  is  assigned 
to  a  ruling  upon  the  report  of  a  master,  the  specification  shall  state 
the  exception  to  the  report  and  the  action  of  the  court  upon  it. 

(3)  A  brief  of  the  argument,  exhibiting  a  clear  statement  of  the 
points  of  law  or  fact  to  be  discussed,  with  a  reference  to  the  pages 
of  the  record  and  the  authorities  relied  upon  in  support  of  each 
point.  When  a  statute  of  a  state  is  cited,  so  much  thereof  as  may 
be  deemed  necessary  to  the  decision  of  the  case  shall  be  printed  at 
length. 

5.  When  the  error  alleged  is  to  the  charge  of  the  court,  the  speci- 
fication shall  set  out  the  part  referred  to  totidem  verbis,  whether  it 
be  instructions  given  or  instructions  refused. 

6.  When  the  error  alleged  is  to  the  admission  or  to  the  rejection 
of  evidence,  the  specification  shall  quote  the  full  substance  of  the 
evidence  admitted  or  rejected. 

7.  Counsel  for  a  defendant  in  error  or  an  appellee  shall  file  with  the 
clerk  twenty  printed  copies  of  his  argument,  at  least  three  days  before 
the  case  is  called  for  hearing.  His  brief  shall  be  of  a  like  character 
with  that  required  of  the  plaintiff"  or  appellant,  except  that  no  assign- 
ment of  errors  is  required,  and  no  statement  of  the  case,  unless  that 
presented  by  the  plaintiff"  or  appellant  is  controverted. 

8.  Without  such  an  assignment  of  errors,  counsel  will  not  be 
heard  except  at  the  request  of  the  court,  and  errors  not  assigned 
according  to  this  rule  will  be  disregarded,  though  the  court,  at  its 
option,  may  notice  a  plain  error  not  assigned. 

9.  When,  according  to  this  rule,  a  plaintiff"  in  error,  or  an  appel- 
lant, is  in  default,  the  case  may  be  dismissed  on  motion,  and  when 
a  defendant  in  error,  or  an  appellee,  is  in  default,  he  will  not  be 
heard  except  on  consent  of  his  adversary,  and  with  request  of  the 
court. 

10.  When  no  counsel  appears  for  one  of  the  parties,  and  no 
printed  briefer  argument  is  filed,  only  one  counsel  will  be  heard  for 
the  adverse  party;  but  if  a  printed  brief  or  argument  is  filed,  the 
adverse  party  will  be  entitled  to  be  heard  by  two  counsel. 

Rule  22. — Order  of  Argument. 

Opening  and  close. — The  plaintiff"  or  appellant  in  this  court 
shall  be  entitled  to  open  and  conclude  the  case.     But  when  there 


GENERAL   RULES.  541 

are  cross-appeals,  they  shall  be  argued  together  as  one  case,  and  the 
plaintiff  in  the  court  below  shall  be  entitled  to  open  and  conclude 
the  argument. 

Rule  23. — Interest. 

1.  On  affirmance. — In  cases  where  a  writ  of  error  is  prose, 
cuted  to  this  court,  and  the  judgment  of  the  inferior  court  is 
affirmed;  the  interest  shall  be  calculated  and  levied  from  the  date 
of  the  judgment  below,  until  the  same  is  paid,  at  the  same  rate 
that  similar  judgments  bear  interest  in  the  courts  of  the  state  where 
such  judgment  is  rendered. 

2.  Damage  on  frivolous  appeal. — In  all  cases  where  a  writ  of 
error  shall  delay  the  proceedings  on  the  judgment  of  the  inferior 
court,  and  shall  appear  to  have  been  sued  out  merely  for  delay, 
damages  at  the  rate  of  ten  per  cent.,  in  addition  to  interest,  shall 
be  awarded  upon  the  amount  of  the  judgment. 

3.  On  appeal  from  decree. — The  same  rule  shall  be  applied  to 
decrees  for  the  payment  of  money  in  cases  of  chancery,  unless 
otherwise  ordered  by  this  court. 

Rule  24. — Costs. 

1.  On  dismissal. — In  all  cases  where  any  suit  shall  be  dis- 
missed in  this  court,  except  where  the  dismissal  shall  be  for  want  of 
jurisdiction,  costs  shall  be  allowed  to  the  defendant  in  error  or  ap- 
pellee, as  the  case  may  be,  unless  otherwise  agreed  by  the  parties. 

2.  On  affirmance. — In  all  cases  of  affirmance  of  any  judgment 
or  decree  in  this  court,  costs  shall  be  allowed  to  the  defendant  in 
error  or  appellee,  as  the  case  may  be,  unless  otherwise  Ordered  by 
the  court. 

3.  On  reversal. — In  cases  of  reversal  of  any  judgment  or  de- 
cree in  this  court,  costs  shall  be  allowed  to  the  plaintiff  in  error  or 
appellant,  as  the  case  may  be,  unless  otherwise  ordered  by  the 
court.  The  costs  of  the  transcript  of  the  record  from  the  court 
below  shall  be  a  part  of  such  costs;  and  be  taxable  in  that  court  as 
costs  in  the  case. 

4.  Not  applicable  to  United  States. — Neither  of  the  fore- 
going rules  shall  apply  to  cases  where  the  United  States  are  a  party  ; 
but  in  such  cases  no  costs  shall  be  allowed  in  this  court  for  or 
against  the  United  States. 


542  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

5.  Mandate. — In  all  cases  of  the  dismissal  of  any  suit  in  this 
court,  it  shall  be  the  duty  of  the  clerk  to  issue  a  mandate,  or  other 
proper  process,  in  the  nature  of  a  procedendo,  to  the  court  below, 
for  the  purpose  of  informing  such  court  of  the  proceedings  in  this 
court,  so  that  further  proceedings  may  be  had  in  such  court  as  to 
law  and  justice  may  appertain. 

6.  Costs  to  be  inserted. — When  costs  are  allowed  in  this  court, 
it  shall  be  the  duty  of  the  clerk  to  insert  the  amount  thereof  in  the 
body  of  the  mandate,  or  other  proper  process,  sent  to  the  court  be- 
low, and  annex  to  the  same  the  bill  of  items  taxed  in  detail. 

Rule  25. — Opinions  of  the  Court. 

1.  Recorded. — All  opinions  delivered  by  the  court  shall  imme- 
diately, upon  the  delivery  thereof,  be  delivered  over  to  the  clerk  to 
be  recorded.  And  it  shall  be  the  duty  of  the  clerk  to  cause  the 
same  to  be  forthwith  recorded  and  to  deliver  a  copy  to  the  reporter 
as  soon  as  the  same  shall  be  recorded. 

2.  When  recorded. — The  opinions  of  the  court,  as  far  as  prac- 
ticable, shall  be  recorded  during  the  term,  so  that  the  publication 
of  the  reports  may  not  be  delayed  thereby. 

3.  Preservation  of. — The  original  opinions  of  the  court  shall 
be  filed  with  the  clerk  of  this  court  for  preservation. 

Rule  26. — Call  of  the  Docket. 

1.  On  second  day  of  term. — The  court  on  the  second  day  in 
each  term  will  commence  calling  the  cases  for  argument  in  the  order 
in  which  they  stand  on  the  docket,  and  proceed  from  day  to  day, 
during  the  term,  in  the  same  order,  except  as  hereinafter  provided ; 
and  if  the  parties,  or  either  of  them,  shall  be  ready  when  the  case 
is  called,  the  same  will  be  heard ;  and  if  neither  party  shall  be 
ready  to  proceed  in  the  argument,  the  cause  shall  go  down  to  the 
foot  of  the  docket,  unless  some  good  and  satisfactory  reason  to  the 
contrary  shall  be  shown  to  the  court. 

2.  Ten  causes  only  each  day. — Ten  causes  only  shall  be  con- 
sidered as  liable  to  be  called  on  each  day  during  the  term,  including 
the  one  under  argument. 

3.  Criminal  cases  advanced. — Criminal  cases  may  be  ad- 
vanced, by  leave  of  the  conrt,  on  motion  of  either  party. 

4.  Cases  of  general  public  interest. — Revenue  cases  and 


GENERAL   RULES.  543 

cases  in  whicli  the  United  States  are  concerned,  ■which  also  involve 
or  affect  some  matter  of  general  public  interest,  may  also,  by  leave 
of  the  court,  be  advanced  on  motion  of  the  Attorney-General. 

All  motions  to  advance  cases  must  be  printed,  and  must  contain 
a  brief  statement  of  the  matter  involved,  with  the  reasons  for  the 
application. 

5.  Order  to  be  preserved. — No  other  cause  shall  be  taken  up 
out  of  the  order  on  the  docket,  or  be  set  down  for  any  particular 
day,  except  under  special  and  peculiar  circumstances,  to  be  shown 
to  the  court.  Every  cause  which  shall  have  been  called  in  its  order 
and  passed,  and  put  at  the  foot  of  the  docket,  shall,  if  not  again 
reached  during  the  term  it  was  called,  be  continued  to  the  next 
term  of  the  court. 

6.  What  causes  heard  together. — Two  or  more  cases  also  in- 
volving the  same  question  may,  by  leave  of  the  court,  be  heard  to- 
gether, but  they  must  be  argued  as  one  case. 

7.  Reinstatement  of  cause. — If,  after  a  cause  has  been  passed, 
under  circumstances  which  do  not  place  it  at  the  foot  of  the  docket, 
the  parties  shall  desire  to  have  it  heard,  they  may  file  with  the  clerk 
their  joint  request  to  that  effect,  and  the  cause  shall  then  be  by  him 
reinstated  for  call,  ten  cases  after  that  under  argument  or  next  to 
be  called  at  the  end  of  the  day  the  request  is  filed.  If  the  parties 
will  not  unite  in  such  a  request,  either  may  move  to  take  up  the 
cause,  and  it  shall  then  be  assigned  to  such  place  upon  the  docket 
as  the  court  may  direct.  No  stipulation  to  pass  a  cause  without 
placing  it  at  the  foot  of  the  docket  will  be  recognized  as  binding 
upon  the  court.  A  cause  can  only  be  so  passed  upon  application 
made  and  leave  granted  in  open  court. 

Rule  27. — Adjournment. 

Announcement  of. — The  court  will,  at  every  session,  announce 
on  what  day  it  will  adjourn,  at  least  ten  days  before  the  time  which 
shall  be  fixed  upon ;  and  the  court  will  take  up  no  case  for  argu- 
ment, nor  receive  any  case  upon  printed  briefs,  within  three  days 
next  before  the  day  fixed  upon  for  adjournment. 

Rule  28. — Dismissal,  in  Vacation. 

On  agreement. — "Whenever  the  plaintiff  and  defendant  in  a  writ 
of  error  pending  in  this  court,  or  the  appellant  and  appellee  in  any 


644  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

appeal,  shall  at  any  time  hereafter,  in  vacation  and  out  of  term  time, 
by  their  respective  attorneys,  who  are  entered  as  such  on  the  record, 
sign  and  file  with  the  clerk  an  agreement  in  writing  directing  the 
case  to  be  dismissed,  and  specifying  the  terms  on  which  it  is  to  be 
dismissed  as  to  costs,  and  also  paying  to  the  clerk  any  fees  that  may 
be  due  to  him,  it  shall  be  the  duty  of  the  clerk  to  enter  the  case  dis- 
missed, and  to  give  to  either  party  which  may  request  it  a  copy  of 
the  agreement  filed  ;  but  no  mandate  or  other  process  is  to  issue 
without  an  order  by  the  court. 

Rule  29. — Supersedeas. 

Bond  of  indExMNITY. — Supersedeas  bonds  in  the  circuit  courts 
must  be  taken,  with  good  and  sufficient  security,  that  the  plaintiff 
in  error  or  appellant  shall  prosecute  his  writ  or  appeal  to  eflfect,  and 
answer  all  damages  and  costs  if  he  fail  to  make  his  plea  good.  Such 
indemnity,  where  the  judgment  or  decree  is  for  the  recovery  of 
money  not  otherwise  secured,  must  be  for  the  whole  amount  of  the 
judgment  or  decree,  including  "just  damages  for  delay"  and  costs 
and  interest  on  the  appeal ;  but  in  all  suits  where  the  property  in 
controversy  necessarily  follows  the  event  of  the  suit,  as  in  real  ac- 
tions, replevin  and  in  suits  on  mortgages ;  or  where  the  property  is 
in  the  custody  of  the  marshal,  under  admiralty  process,  as  in  case 
of  capture  or  seizure;  or  where  the  proceeds  thereof,  or  a  bond  for 
the  value  thereof,  is  in  the  custody  or  control  of  the  court,  indem- 
nity in  all  such  cases  is  only  required  in  an  amount  sufficient  to  se- 
cure the  sum  recovered  for  the  use  and  detention  of  the  property 
and  the  costs  of  the  suit  and  "just  damages  for  delay,"  and  costs 
and  interest  on  the  appeal. 

Rule  30. — Suspension  or  Modification  of  Injunction. 

Application  for. — In  cases  where  appeals  of  the  character  men- 
tioned in  Rule  93,  regulating  equity  practice,  have  already  been 
taken,  this  court  will,  after  the  cause  has  been  docketed,  entertain 
an  application  for  a  suspension  or  modification  of  the  injunction 
based  upon  a  statement  of  the  facts  affecting  the  application  by  a 
justice  or  judge  who  took  part  in  the  decision.  All  such  applica- 
tions must  be  printed  and  submitted  on  briefs.  No  oral  arguments 
will  be  heard  unless  specially  ordered. 


general  rules.  545 

Rule  31. — Form  of  Printed  Records  and  Briefs. 

All  records  and  arguments  printed  for  the  use  of  the  court  must 
be  in  such  form  and  size  that  thej  can  be  conveniently  cut  and 
bound  so  as  to  make  an  ordinary  octavo  volume.  The  clerk  will 
not  receive  or  file  records  or  arguments  intended  for  distribution  to 
the  judges  that  do  not  conform  to  the  requirements  of  this  rule. 


35 


RULES  OF  PRACTICE 

FOR    THE 

COURTS  OF  EQUITY  OF  THE  UNITED  STATES. 


Rule  1. 


Court  always  open. — The  circuit  courts,  as  courts  of  equity, 
shall  be  deemed  always  open  for  the  purpose  of  filing  bills,  answers 
and  other  pleadings,  for  issuing  and  returning  mesne  and  final  pro- 
cess and  commissions,  and  for  making  and  directing  all  interlocu- 
tory motions,  orders,  rules  and  other  proceedings,  preparatory  to  the 
hearing  of  all  causes  upon  their  merits. 

Rule  2. 

Clerk's  office  ;  when  open. — The  clerk's  office  shall  be  open, 
and  the  clerk  shall  be  in  attendance  therein,  on  the  first  Monday 
of  every  month,  for  the  purpose  of  receiving,  entering,  entertaining 
and  disposing  of  all  motions,  rules,  orders  and  other  proceedings, 
which  are  grantable  of  course,  and  applied  for  or  had  by  the  par- 
ties or  their  solicitors,  in  all  causes  pending  in  equity,  in  pursuance 
of  the  rules  hereby  prescribed. 

Rule  3. 

Orders,  rules,  etc. — Any  judge  of  the  circuit  court,  as  well  in 
vacation  as  in  term,  may,  at  chambers,  or  on  the  rule-days  at  the 
clerk's  office,  make  and  direct  all  such  interlocutory  orders,  rules 
and  other  proceedings,  preparatory  to  the  hearing  of  all  causes 
upon  their  merits,  in  the  same  manner  and  with  the  same  effect  as 
the  circuit  court  could  make  and  direct  the  same  in  term,  reasonable 
notice  of  the  application  therefor  being  first  given  to  the  adverse 
party,  or  his  solicitor,  to  appear  and  show  cause  to  the  contrary  at 
the  next  rule-day  thereafter,  unless  some  other  time  is  assigned  by 
the  judge  for  the  hearing. 


equity  rules.  54t 

Rule  4. 

Motions,  rules  and  orders. — All  motions,  rules,  orders  and 
other  proceedings  made  and  directed  at  chambers,  or  on  rule-days 
at  the  clerk's  office,  whether  special  or  of  course,  shall  be  entered 
by  the  clerk  in  an  order-book,  to  be  kept  at  the  clerk's  office,  on  the 
day  when  they  are  made  and  directed;  which  book  shall  be  open  at 
all  office  hours  to  the  free  inspection  of  the  parties  in  any  suit  in 
equity  and  their  solicitors.  And  except  in  cases  where  personal  or 
other  notice  is  specially  required  or  directed,  such  entry  in  the  order- 
book  shall  be  deemed  sufficient  notice  to  the  parties  and  their  solicitors, 
without  further  service  thereof,  of  all  orders,  rules,  acts,  notices  and 
other  proceedings  entered  in  such  order-book,  touching  any  and  all  the 
matters  in  the  suits  to  and  in  which  they  are  parties  and  solicitors. 
And 'notice  to  the  solicitors  shall  be  deemed  notice  to  the  parties 
for  whom  they  appear  and  whom  they  represent,  in  all  cases  where 
personal  notice  on  the  parties  is  not  otherwise  specially  required. 
Where  the  solicitors  for  all  the  parties  in  a  suit  reside  in  or  near  the 
same  town  or  city,  the  judges  of  the  circuit  court  ma^,  by  rule, 
abridge  the  time  for  notice  of  rules,  orders  or  other  proceedings  not 
requiring  personal  service  on  the  parties,  in  their  discretion. 

Rule  5. 

Motions  for  process,  etc.,  as  of  course. — All  motions  and 
applications  in  the  clerk's  office  for  the  issuing  of  mesne  process 
and  final  process  to  enforce  and  execute  decrees;  for  filing  bills, 
answers,  pleas,  demurrers  and  other  pleadings ;  for  making  amend- 
ments to  bills  and  answers ;  for  taking  bills  pro  confesso ;  for  filing 
exceptions,  and  for  other  proceedings  in  the  clerk's  office  which  do 
not,  by  the  rules  hereinafter  prescribed,  require  any  allowance  or 
order  of  the  court,  or  of  any  judge  thereof,  shall  be  deemed  motions 
and  applications  grantable  of  course  by  the  clerk  of  the  court. 
But  the  same  may  be  suspended  or  altered  or  rescinded  by  any 
judge  of  the  court,  upon  special  cause  shown. 

Rule  6. 

Motions  and  orders  not  grantable  of  course. — All  motions 
for  rules  or  orders  and  other  proceedings,  which  are  not  grantable 
of  course,  or  without  notice,  shall,  unless  a  different  time  be  assigned 


548  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

bj  a  judge  of  the  court,  be  made  on  a  rule-day,  and  entered  in  the 
order-book,  and  shall  be  heard  at  the  rule-day  next  after  that  on 
which  the  motion  is  made.  And  if  the  adverse  party,  or  his  solic- 
itor, shall  not  then  appear,  or  shall  not  show  good  cause  against  the 
same,  the  motion  may  be  heard  by  any  judge  of  the  court  ex  parte, 
and  granted,  as  if  not  objected  to,  or  refused,  in  his  discretion. 

Rule  7. 

Compulsory  process. — The  process  of  subpoena  shall  constitute 
the  proper  mesne  process  in  all  suits  in  equity,  in  the  first  instance 
to  require  the  defendant  to  appear  and  answer  the  exigency  of  the 
bill ;  and,  unless  otherwise  provided  in  these  rules,  or  specially 
ordered  by  the  circuit  court,  a  writ  of  attachment,  and,  if  the 
defendant  cannot  be  found,  a  writ  of  sequestration  or  a  writ  of 
assistance  to  enforce  a  delivery  of  possession,  as  the  case  may 
require,  shall  be  the  proper  process  to  issue  for  the  purpose  of  com- 
pelling obedience  to  any  interlocutory  or  final  order  or  decree  of  the 
court. 

Rule  8. 

Final  process. — Final  process  to  execute  any  decree  may,  if  the 
decree  be  solely  for  the  payment  of  money,  be  by  a  writ  of  execu- 
tion, in  the  form  used  in  the  circuit  court  in  suits  at  common  law  in 
actions  of  assumpsit.  If  the  decree  be  for  the  performance  of  any 
specific  act,  as,  for  example,  for  the  execution  of  a  conveyance  of 
land,  or  the  delivering  up  of  deeds  or  other  documents,  the  decree 
shall,  in  all  cases,  prescribe  the  time  within  which  the  act  shall  be 
done,  of  which  the  defendant  shall  be  bound  without  further  service 
to  take  notice;  and  upon  affidavit  of  the  plaintiff,  filed  in  the  clerk's 
office,  that  the  same  has  not  been  complied  with  within  the  prescribed 
time,  the  clerk  shall  issue  a  writ  of  attachment  against  the  delin- 
quent- party,  from  which,  if  attached  thereon,  he  shall  not  be  dis- 
charged unless  upon  a  full  compliance  with  the  decree  and  the  pay- 
ment of  all  costs,  or  upon  a  special  order  of  the  court  or  of  a  judge 
thereof,  upon  motion  and  affidavit,  enlarging  the  time  for  the  per- 
formance thereof.  If  the  delinquent  party  cannot  be  found,  a  writ 
of  sequestration  shall  issue  against  his  estate  upon  the  return  of 
non  est  inventus,  to  compel  obedience  to  the  decree.  (See  Rule  92.) 


equity  rules.  549 

Rule  9. 

Writ  of  assistance.  —  When  any  decree  or  order  is  for  the 
delivery  of  possession  upon  proof  made  by  affidavit  of  a  demand 
and  refusal  to  obey  the  decree  or  order,  the  party  prosecuting  the 
same  shall  be  entitled  to  a  writ  of  assistance  from  the  clerk  of  the 
court. 

Rule  10. 

Parties,  how  affected. — Every  person,  not  being  a  party  in 
any  cause,  who  has  obtained  an  order,  or  in  whose  favor  an  order 
shall  have  been  made,  shall  be  enabled  to  enforce  obedience  to  such 
order  by  the  same  process  as  if  he  were  a  party  to  the  cause;  and 
every  person,  not  being  a  party  in  any  cause,  against  whom  obe- 
dience to  any  order  of  the  court  may  be  enforced,  shall  be  liable  to 
the  same  process  for  enforcing  obedience  to  such  order  as  if  he  were 
a  party  in  the  cause. 

Rule  11. 

SuBPCENA. — No  process  of  subpoena  shall  issue  from  the  clerk's 
office  in  any  suit  in  equity  until  the  bill  is  filed  in  the  office. 

Rule  12. 

SuBPCENA,  WHEN  RETURNABLE. — Whenever  a  bill  is  filed,  the 
clerk  shall  issue  the  process  of  subpoena  thereon  as  of  course,  upon 
the  application  of  the  plaintiff,  which  shall  be  returnable  into  the 
clerk's  office  the  next  rule-day,  or  the  next  rule-day  but  one,  at  the 
election  of  the  plaintiff,  occurring  after  twenty  days  from  the  time 
of  the  issuing  thereof.  At  the  bottom  of  the  subpoena  shall  be 
placed  a  memorandum,  that  the  defendant  is  to  enter  his  appear- 
ance in  the  suit  in  the  clerk's  office  on  or  before  the  day  at  which 
the  writ  is  returnable ;  otherwise,  the  bill  may  be  taken  pro  con- 
fesso.  Where  there  are  more  than  one  defendant,  a  writ  of  sub- 
poena may,  at  the  election  of  the  plaintiff,  be  sued  out  separately 
for  each  defendant,  except  in  the  case  of  husband  and  wife  de- 
fendants, or  a  joint  subpoena  against  all  the  defendants. 

Rule  13. 

Service. — The  service  of  all  subpoenas  shall  be  by  a  delivery  of 
a  copy  thereof,  by  the  officer  serving  the  same,  to  the  defendant 
personally,  or  by  leaving  a  copy  thereof  at  the  dwelling-house  or 


550  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

usual  place  of  abode  of  each  defendant,  with  some  adult  person  who 
is  a  member  or  resident  in  the  family. 

Rule  14. 

• 

Alias  subpcena. — Whenever  any  subpcena  shall  be  returned 
not  executed  as  to  any  defendant,  the  plaintiff  shall  be  entitled  to 
another  subptena,  toties  quoties,  against  such  defendant,  if  he  shall 
require  it,  until  due  service  is  made. 

Rule  15. 

Who  to  make  service. — The  service  of  all  process,  mesne  and 
final,  shall  be  by  the  marshal  of  the  district  or  his  deputy,  or  by 
some  other  person  specially  appointed  by  the  court  for  that  pur- 
pose, and  not  otherwise.  In  the  latter  case  the  person  serving 
the  process  shall  make  affidavit  thereof. 

Rule  16. 

Entry  on  docket  on-  return. — Upon  the  return  of  the  sub- 
poena as  served  and  executed  upon  any  defendant,  the  clerk  shall 
enter  the  suit  upon  his  docket  as  pending  in  the  court,  and  shall 
state  the  time  of  the  entry. 

Rule  17. 

Day  of  appearance. — The  appearance  day  of  the  defendant 
shall  be  the  rule-day  to  which  the  subpoena  is  made  returnable, 
provided  he  has  been  served  with  the  process  twenty  days  before 
that  day ;  otherwise,  his  appearance  day  shall  be  the  next  rule-day 
succeeding  the  rule-day  when  the  process  is  returnable. 

Entry  of. — The  appearance  of  the  defendant,  either  personally 
or  by  his  solicitor,  shall  be  entered  in  the  order-book  on  the  day 
thereof  by  the  clerk. 

Rule  18. 

Default  for  failure  to  plead. — It  shall  be  the  duty  of  the 
defendant,  unless  the  time  shall  be  otherwise  enlarged,  for  cause 
shown,  by  a  judge  of  the  court,  upon  motion  for  that  purpose,  to 
file  his  plea,  demurrer  or  answer  to  the  bill,  in  the  clerk's  office, 
on  the  rule-day  next  succeeding  that  of  entering  his  appearance. 
In  default  thereof,  the  plaintiff  may,  at  his  election,  enter  an  order 
(as  of  course)  in  the  order-book,  that  the  bill  be  taken  pro  con- 


EQUITY   RULES.  551 

fesso ;  and  thereupon  the  cause  shall  be  proceeded  in  ex  parte,  and 
the  matter  of  the  bill  may  be  decreed  by  the  court  at  any  time  after 
the  expiration  of  thirty  days  from  and  after  the  entry  of  said  order, 
if  the  same  can  be  done  without  an  answer,  and  is  proper  to  be  de- 
creed ;  or  the  plaintiff,  if  he  requires  any  discovery  or  answer  to 
enable  him  to  obtain  a  proper  decree,  shall  be  entitled  to  process  of 
attachment  against  the  defendant  to  compel  an  answer,  and  the 
defendant  shall  not,  when  arrested  upon  such  process,  be  dis- 
charged therefrom,  unless  upon  filing  his  answer,  or  otherwise 
complying  with  such  order  as  the  court  or  a  judge  thereof  may 
direct,  as  to  pleading  to  or  fully  answering  the  bill  within  a  period 
to  be  fixed  by  the  court  or  judge,  and  undertaking  to  speed  the 
cause. 

Rule  19. 

Decree  on  default. — When  the  bill  is  taken  pro  confesso,  the 
court  may  proceed  to  a  decree  at  any  time  after  the  expiration  of 
thirty  days  from  and  after  the  entry  of  the  order  to  take  the  bill 
pro  confesso,  and  such  decree  rendered  shall  be  deemed  absolute, 
unless  the  court  shall  at  the  same  term  set  aside  the  same,  or  en- 
large the  time  for  filing  the  answer,  upon  cause  shown  upon  motion 
and  afiidavit  of  the  defendant.  And  no  such  motion  shall  be  granted, 
unless  upon  the  payment  of  the  costs  of  the  plaintiff  in  the  suit  up 
to  that  time,  or  such  part  thereof  as  the  court  shall  deem  reasonable, 
and  unless  the  defendant  shall  undertake  to  file  his  answer  within 
such  time  as  the  court  shall  direct,  and  submit  to  such  other  terms 
as  the  court  shall  direct  for  the  purpose  of  speeding  the  cause. 

Rule  20. 

Introductory  part.  —  Every  bill,  in  the  introductory  part 
thereof,  shall  contain  the  names,  places  of  abode,  and  citizenship 
of  all  the  parties,  plaintiffs  and  defendants,  by  and  against  whom 
the  bill  is  brought.  The  form,  in  substance,  shall  be  as  follows : 
"To  the  judges  of  the  circuit  court  of  the  United   States  for  the 

district  of :  A.  B.,  of ,  and  a  citizen  of  the  state  of 

,  brings  this  his  bill  against  C.  D.,  of ,  and  a  citizen 

of  the  state  of  ,  and  E.  F.,  of ,  and  a  citizen  of  the 

state  of .     And  thereupon  your  orator  complains  and  says, 

that,"  etc. 


552         federal  pleading,  practice  and  procedure. 

Rule  21. 

What  to  omit  and  what  to  state. — The  plaintiff,  in  bis  bill, 
shall  be  at  liberty  to  omit,  at  his  option,  the  part  which  is  usually 
called  the  common  confederacy  clause  of  the  bill,  averring  a  con- 
federacy between  the  defendants  to  injure  or  defraud  the  plaintiff; 
also  what  is  commonly  called  the  charging  part  of  the  bill,  setting 
forth  the  matters  or  excuses  which  the  defendant  is  supposed  to 
intend  to  set  up  by  way  of  defence  to  the  bill ;  also  what  is  com- 
monly called  the  jurisdiction  clause  of  the  bill,  that  the  acts  com- 
plained of  are  contrary  to  equity,  and  that  the  defendant  is  without 
any  remedy  at  law ;  and  the  bill  shall  not  be  demurrable  therefor. 
And  the  plaintiff  may,  in  the  narrative  or  stating  part  of  his  bill, 
state  and  avoid,  by  counter-averments,  at  his  option,  any  matter  or 
thing  which  he  supposes  will  be  insisted  upon  by  the  defendant,  by 
way  of  defence  or  excuse,  to  the  case  made  by  the  plaintiff  for  re- 
lief. The  prayer  of  the  bill  shall  ask  the  special  relief  to  which 
the  plaintiff  supposes  himself  entitled,  and  also  shall  contain  a 
prayer  for  general  relief;  and  if  an  injunction,  or  a  writ  of  ne 
exeat  regno,  or  any  other  special  order  pending  the  suit,  is  re- 
quired, it  shall  also  be  specially  asked  for. 

Rule  22. 

Parties  out  of  jurisdiction  of  the  court. — If  any  persons, 
other  than  those  named  as  defendants  in  the  bill,  shall  appear  to  be 
necessary  or  proper  parties  thereto,  the  bill  shall  aver  the  reason 
why  they  are  not  made  parties,  by  showing  them  to  be  without  the 
jurisdiction  of  the  court,  or  that  they  cannot  be  joined  without 
ousting  the  jurisdiction  of  the  court  as  to  the  other  parties.  And 
as  to  persons  who  are  without  the  jurisdiction  and  may  properly  be 
made  parties,  the  bill  may  pray  that  process  may  issue  to  make 
them  parties  to  the  bill  if  they  should  come  within  the  jurisdiction. 

Rule  23. 

Prayer  for  process,  what  it  must  contain. — The  prayer  for 
process  of  subpoena  in  the  bill  shall  contain  the  names  of  all  the  de- 
fendants named  in  the  introductory  part  of  the  bill,  and  if  any  of 
them  are  known  to  be  infants  under  age,  or  otherwise  under  guardian- 
ship, shall  state  the  fact,  so  that  the  court  may  take  order  thereon 
as  justice  may  require,  upon  the  return  of  the  process.     If  an  in- 


EQUITY   RULES.  553 

junction,  or  a  writ  of  ne  exeat  regno,  or  any  other  special  order 
pending  the  suit,  is  asked  for  in  the  prayer  for  relief,  that  shall  be 
sufficient  without  repeating  the  same  in  the  prayer  for  process. 

Rule  24. 

Signature  of  counsel. — Every  bill  shall  contain  the  signature 
of  counsel  annexed  to  it,  which  shall  be  considered  as  an  affirma- 
tion on  his  part  that  upon  the  instructions  given  to  him  and  the 
case  laid  before  him,  there  is  good  ground  for  the  suit,  in  the  man- 
ner in  which  it  is  framed. 

ft  Rule  25. 

Taxable  costs  limited. — In  order  to  prevent  unnecessary  costs 
and  expenses,  and  to  promote  brevity,  succinctness  and  directness 
in  the  allegations  of  bills  and  answers,  the  regular  taxable  costs  for 
every  bill  and  answer  shall  in  no  case  exceed  the  sum  which  is 
allowed  in  the  state  court  of  chancery  in  the  district,  if  any  there 
be ;  but  if  there  be  none,  then  it  shall  not  exceed  the  sum  of  three 
dollars  for  every  bill  or  answer. 

Rule  26. 

Surplusage. — Every  bill  shall  be  expressed  in  as  brief  and  suc- 
cinct terms  as  it  reasonably  can  be,  and  shall  contain  no  unneces- 
sary recital  of  deeds,  documents,  contracts  or  other  instruments, 
in  hsec  verba,  or  any  other  impertinent  matter,  or  any  scandalous 
matter  not  relevant  to  the  suit.  If  it  does,  it  may  on  exceptions 
be  referred  to  a  master  by  any  judge  of  the  court  for  impertinence 
or  scandal ;  and  if  so  found  by  him,  the  matter  shall  be  expunged 
at  the  expense  of  the  plaintiff,  and  he  shall  pay  to  the  defendant 
all  his  costs  in  the  suit  up  to  that  time,  unless  the  court  or  a  judge 
thereof  shall  otherwise  order.  If  the  master  shall  report  that  the 
bill  is  not  scandalous  or  impertinent,  the  plaintiff  shall  be  entitled 
to  all  costs  occasioned  by  the  reference. 

Rule  27. 

Exceptions. — No  order  shall  be  made  by  any  judge  for  referring 
any  bill,  answer  or  pleading,  or  other  matter  or  proceeding  de- 
pending before  the  court,  for  scandal  or  impertinence,  unless 
exceptions  are  taken  in  writing  and  signed  by  counsel,  describing 


554     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

the  particular  passages  which  are  considered  to  be  scandalous  or 
impertinent ;  nor  unless  the  exceptions  shall  be  filed  on  or  before 
the  next  rule-day  after  the  process  on  the  bill  shall  be  returnable, 
or  after  the  answer  or  pleading  is  filed.  And  such  order,  when 
obtained,  shall  be  considered  as  abandoned  unless  the  party  ob- 
taining the  order  shall,  without  any  unnecessary  delay,  procure  the 
master  to  examine  and  report  for  the  same  on  or  before  the  next 
succeeding  rule-day,  or  the  master  shall  certify  that  further  time 
is  necessary  for  him  to  complete  the  examination. 

Rule  28. 
When  amendments  are  as  of  course. — The  plaintifi"  shall  be 
at  liberty,  as  a  matter  of  course  and  without  payment  of  costs,  to 
amend  his  bill  in  any  matters  whatsoever,  before  any  copy  has  been 
taken  out  of  the  clerk's  office,  and  in  any  small  matters  afterwards, 
such  as  filling  blanks,  correcting  errors  of  dates,  misnomer  of  par- 
ties, misdescription  of  premises,  clerical  errors,  and  generally  in 
matters  of  form.  But  if  he  amend  in  a  material  point  (as  he  may 
do  of  course)  after  a  copy  has  been  so  taken,  before  any  answer  or 
plea  or  demurrer  to  the  bill,  he  shall  pay  to  the  defendant  the  costs 
occasioned  thereby,  and  shall,  without  delay,  furnish  him  a  fair 
copy  thereof  free  of  expense,  with  suitable  references  to  the  places 
where  the  same  are  to  be  inserted.  And  if  the  amendments  are 
numerous,  he  shall  furnish  in  like  manner,  to  the  defendant,  a  copy 
of  the  whole  bill  as  amended ;  and  if  there  be  more  than  one 
defendant,  a  copy  shall  be  furnished  to  each  defendant  affected 
thereby. 

Rule  29. 

Amendments  by  order  of  court. — After  an  answer  or  plea  or 
demurrer  is  put  in,  and  before  replication,  the  plaintiff  may,  upon 
motion  or  petition,  without  notice,  obtain  an  order  from  any  judge 
of  the  court  to  amend  his  bill  on  or  before  the  next  succeeding  rule- 
day,  upon  payment  of  costs  or  without  payment  of  costs,  as  the 
court  or  a  judge  thereof  may  in  his  discretion  direct.  But  after 
replication  filed,  the  plaintiff  shall  not  be  permitted  to  withdraw  it 
and  to  amend  his  bill,  except  upon  a  special  order  of  a  judge  of 
the  court,  upon  motion  or  petition,  after  due  notice  to  the  other 
party,  and  upon  proof  by  affidavit  that  the  same  is  not  made  for 
the  purpose  of  vexation   or  delay,  or  that  the  matter  of  the  pro- 


EQUITY   KULES.  555 

posed  amendment  is  material,  and  could  not  with  reasonable  dili- 
gence have  been  sooner  introduced  into  the  bill,  and  upon  the 
plaintiff's  submitting  to  such  other  terms  as  may  be  imposed  by  the 
judge  for  speeding  the  cause. 

Rule  30. 

When  order  may  be  abandoned. — If  the  plaintiff  so  obtain- 
ing any  order  to  amend  his  bill  after  answer  or  plea  or  demurrer, 
or  after  replication,  shall  not  file  his  amendments  or  amended  bill, 
as  the  case  may  require,  in  the  clerk's  office,  on  or  before  the  next 
succeeding  rule-day,  he  shall  be  considered  to  have  abandoned  the 
same,  and  the  cause  shall  proceed  as  if  no  application  for  any 
amendment  had  been  made. 

Rule  31. 

Certificate  required. — No  demurrer  or  plea  shall  be  allowed 
to  be  filed  to  any  bill,  unless  upon  a  certificate  of  counsel  that  in 
his  opinion  it  is  well  founded  in  point  of  law,  and  -supported  by  the 
affidavit  of  the  defendant  that  it  is  not  interposed  for  delay ;  and  if 
a  plea,  that  it  is  true  in  point  of  fact. 

Rule  32. 

May  demur  or  plead  with  leave  of  court. — The  defendant 
may,  at  any  time  before  the  bill  is  taken  for  confessed,  or  after- 
ward with  the  leave  of  the  court,  demur  or  plead  to  the  whole  bill, 
or  to  part  of  it,  and  he  may  demur  to  part,  plead  to  part,  and 
answer  as  to  the  residue ;  but  in  every  case  in  which  the  bill 
specially  charges  fraud  or  combination,  a  plea  to  such  part  must  be 
accompanied  with  an  answer  fortifying  the  plea,  and  explicitly  de- 
nying the  fraud  and  combination,  and  the  facts  on  which  the 
charge  is  founded. 

Rule  33. 

Argument  on  plea. — The  plaintiff  may  set  down  the  demurrer 
or  plea  to  be  argued,  or  he  may  take  issue  on  the  plea.  If,  upon 
an  issue,  the  facts  stated  in  the  plea  be  determined  for  the  defend- 
ant, they  shall  avail  him  as  far  as  in  law  and  equity  they  ought  to 
avail  him. 


556         federal  pleading,  practice  and  procedure. 

Rule  34. 

When  costs  on  demurrer  overruled. — If,  upon  the  hearing, 
anj  demurrer  or  plea  is  overruled,  the  plaintiff  shall  be  entitled  to 
his  costs  in  the  cause  up  to  that  period,  unless  the  court  shall  be 
satisfied  that  the  defendant  had  good  ground  in  point  of  law  or 
fact  to  interpose  the  same,  and  it  was  not  interposed  vexatiously  or 
for  delay.  And  upon  the  overruling  of  any  plea  or  demurrer,  the 
defendant  shall  be  assigned  to  answer  the  bill,  or  so  much  thereof 
as  is  covered  by  the  plea  or  demurrer,  the  next  succeeding  rule- 
day,  or  at  such  other  period  as,  consistently  with  justice  and  the 
rights  of  the  defendant,  the  same  can,  in  the  judgment  of  the  court, 
be  reasonably  done ;  in  default  whereof,  the  bill  shall  be  taken 
against  him,  pro  confesso,  and  the  matter  thereof  proceeded  in  and 
decreed  accordingly. 

Rule  35. 

When  costs  on  demurrer  allowed. — If,  upon  the  hearing, 
any  demurrer  or  plea  shall  be  allowed,  the  defendant  shall  be  en- 
titled to  his  costs.  But  the  court  may  in  its  discretion,  upon 
motion  of  the  plaintiff,  allow  him  to  amend  his  bill  upon  such  terms 
as  it  shall  deem  reasonable. 

Rule  36. 

Demurrer,  sufficiency  of. — No  demurrer  or  plea  shall  be 
held  bad  and  overruled  upon  argument  only  because  such  demurrer 
or  plea  shall  not  cover  so  much  of  the  bill  as  it  might  by  law  have 
extended  to. 

Rule  37. 

Demurrer  and  answer  to  same  matter. — No  demurrer  or 
plea  shall  be  held  bad  and  overruled  upon  argument  only  because 
the  answer  of  the  defendant  may  extend  to  some  part  of  the  same 
matter  as  may  be  covered  by  such  demurrer  or  plea. 

Rule  38. 

Failure  to  reply  or  set  down  plea  or  demurrer  for  ar- 
gument.— If  the  plaintiff  shall  not  reply  to  any  plea,  or  set  down 
any  plea  or  demurrer  for  argument,  on  the  rule-day  when  the  same 
is  filed,  or  on  the  next  succeeding  rule-day,  he  shall  be  deemed  to 
admit  the  truth  and  sufiiciency  thereof,  and  his  bill  shall  be  dis- 


EQUITY   RULES.  557 

missed  as  of  course,  unless  a  judge  of  the  court  shall  allow  him 
further  time  for  the  purpose. 

Rule  39. 

Sufficiency  of. — The  rule  that  if  a  defendant  suhmits  to  an- 
swer he  shall  answer  fully  to  all  the  matters  of  the  bill  shall  no 
longer  apply  in  cases  where  he  might  by  plea  protect  himself  from 
such  answer  and  discovery.  And  the  defendant  shall  be  entitled 
in  all  cases  by  answer  to  insist  upon  all  matters  of  defence  (not 
being  matters  of  abatement,  or  to  the  character  of  the  parties,  or 
matters  of  form)  in  bar  of  or  to  the  merits  of  the  bill,  of  which  he 
may  be  entitled  to  avail  himself  by  a  plea  in  bar ;  and  in  such 
answer  he  shall  not  be  compellable  to  answer  any  other  matters 
than  he  would  be  compellable  to  answer  and  discover  upon  filing  a 
plea  in  bar,  and  an  answer  in  support  of  such  plea,  touching  the 
matters  set  forth  in  the  bill,  to  avoid  or  repel  the  bar  or  defence. 
Thus,  for  example,  a  bona  fide  purchaser  for  a  valuable  considera- 
tion, without  notice,  may  set  up  that  defence  by  way  of  answer 
instead  of  plea,  and  shall  be  entitled  to  the  same  protection,  and 
shall  not  be  compellable  to  make  any  further  answer  or  discovery  of 
title  than  he  would  be  in  any  answer  in  support  of  such  plea. 

Rule  40. 

What  defendant  is  not  bound  to  answer. — A  defendant 
shall  not  be  bound  to  answer  any  statement  or  charge  in  the  bill 
unless  specially  and  particularly  interrogated  thereto  ;  and  a  de- 
fendant shall  not  be  bound  to  answer  any  interrogatory  in  the  bill, 
except  those  interrogatories  which  such  defendant  is  required  to 
answer ;  and  where  a  defendant  shall  answer  any  statement  or 
charge  in  the  bill  to  which  he  is  not  interrogated,  only  by  stating 
his  ignorance  of  the  matter  so  stated  or  charged,  such  answer  shall 
be  deemed  impertinent. 

Ordered  (December  Term,  1850),  that  the  fortieth  rule,  hereto- 
fore adopted  and  promulgated  by  this  court  as  one  of  the  rules  of 
practice  in  suits  in  equity  in  the  circuit  courts,  be  and  the  same  is 
hereby  repealed  and  annulled.  And  it  shall  not  hereafter  be  neces- 
sary to  interrogate  a  defendant  specially  and  particularly  upon  any 
statement  in  the  bill,  unless  the  complainant  desires  to  do  so  to 
obtain  a  discovery. 


558    federal  pleading,  practice  and  procedure. 

Rule  41. 

Interrogatories  to  be  numbered. — The  interrogatories  con- 
tained in  the  interrogating  part  of  the  bill  shall  be  divided  as  con- 
veniently as  may  be  from  each  other,  and  numbered  consecutively 
1,  2,  3,  etc. ;  and  the  interrogatories  which  each  defendant  is  re- 
quired to  answer  shall  be  specified  in  a  note  at  the  foot  of  the  bill, 
in  the  form  or  to  the  effect  following,  that  is  to  say :  "  The  defend- 
ant (A.  B.)  is  required  to  answer  the  interrogatories  numbered 
respectively  1,  2,  3,  etc. ;  and  the  office  copy  of  the  bill  taken  by 
each  defendant  shall  not  contain  any  interrogatories  except  those 
which  such  defendant  is  so  required  to  answer,  unless  such  defend- 
ant shall  require  to  be  furnished  with  a  copy  of  the  whole  bill. 

Amendment  to  Equity  Rule  41. 

When  answer  not  evidence. — If  the  complainant,  in  his  bill, 
shall  waive  an  answer  under  oath,  or  shall  only  require  an  answer 
under  oath  with  regard  to  certain  specified  interrogatories,  the 
answer  of  the  defendant,  though  under  oath,  except  such  part 
thereof  as  shall  be  directly  responsive  to  such  interrogatories,  shall 
not  be  evidence  in  his  favor,  unless  the  cause  be  set  down  for  hear- 
ing on  bill  and  answer  only ;  but  may  nevertheless  be  used  as  an 
affidavit,  with  the  same  effect  as  heretofore,  on  a  motion  to  grant 
or  dissolve  an  injunction,  or  on  any  other  incidental  motion  in  the 
cause;  but  this  shall  not  prevent  a  defendant  from  becoming  a  wit- 
ness in  his  own  behalf  under  section  3  of  the  act  of  Congress  of 
July  2,  1864.     (See  Revised  Statutes,  §  858.) 

Rule  42. 

What  interrogatories  part  of  bill. — The  note  at  the  foot 
of  the  bill,  specifying  the  interrogatories  which  each  defendant  is 
required  to  answer,  shall  be  considered  and  treated  as  part  of  the 
bill,  and  the  addition  of  any  such  note  to  the  bill,  or  any  alteration 
in  or  addition  to  such  note  after  the  bill  is  filed,  shall  be  considered 
and  treated  as  an  amendment  of  the  bill. 

Rule  43. 

Form  preceding  interrogating  part. — Instead  of  the  words 
of  the  bill  now  in  use,  preceding  the  interrogating  part  thereof, 
and  beginning  with  the  words  "To  the  end,  therefore,"  there  shall 


EQUITY    RULES.  559 

hereafter  be  used  words  in  the  form  or  to  the  effect  following :  "  To 
the  end,  therefore,  that  the  said  defendants  may,  if  they  can,  show 
why  your  orator  should  not  have  the  relief  hereby  prayed,  and  may, 
upon  their  several  and  respective  corporal  oaths,  and  according  to 
the  best  and  utmost  of  their  several  and  respective  knowledge,  re- 
membrance, information  and  belief,  full,  true,  direct  and  perfect 
answer  make  to  such  of  the  several  interrogatories  hereinafter  num- 
bered and  set  forth  as  by  the  note  hereunder  written  they  are  re- 
spectively required  to  answer ;  that  is  to  say — 

"  1.  Whether,  etc. 

"2.  Whether,  etc." 

Rule  44. 

What  iNTERRoaATORiES  NEED  NOT  BE  ANSWERED. — A  defendant 
shall  be  at  liberty,  by  answer,  to  decline  answering  any  interroga- 
tory, or  part  of  an  interrogatory,  from  answering  which  he  might 
have  protected  himself  by  demurrer ;  and  he  shall  be  at  liberty  so 
to  decline,  notwithstanding  he  shall  answer  other  parts  of  the  bill, 
from  which  he  might  have  protected  himself  by  demurrer. 

Rule  45. 

No  SPECIAL  REPLICATION. — No  Special  replication  to  any  answer 
shall  be  filed.  But  if  any  matter  alleged  in  the  answer  shall  make 
it  necessary  for  the  plaintiff  to  amend  his  bill,  he  may  have  leave 
to  amend  the  same,  with  or  without  the  payment  of  costs,  as  the 
court,  or  a  judge  thereof,  may  in  his  discretion  direct. 

Rule  46. 

New  or  supplemental  answer.  —  In  every  case  where  an 
amendment  shall  be  made  after  answer  filed,  the  defendant  shall 
put  in  a  new  or  supplemental  answer,  on  or  before  the  next  suc- 
ceeding rule-day  after  that  on  which  the  amendment  or  amended 
bill  is  filed,  unless  the  time  is  enlarged  or  otherwise  ordered  by  a 
judge  of  the  court ;  and  upon  his  default  the  like  proceedings  may 
be  had  as  in  cases  of  an  omission  to  put  in  an  answer. 

Rule  47. 

Proper  parties,  when  not  necessary. — In  all  cases  where  it 
shall  appear  to  the  court  that  persons,  who  might  otherwise   be 


560  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

deemed  necessary  or  proper  parties  to  the  suit,  cannot  be  made 
parties  by  reason  of  their  being  out  of  the  jurisdiction  of  the  court, 
or  incapable  otherwise  of  being  made  parties,  or  because  their  join- 
der would  oust  the  jurisdiction  of  the  court  as  to  the  parties  before 
the  court,  the  court  may  in  their  discretion  proceed  in  the  cause 
without  making  such  persons  parties  ;  and  in  such  cases  the  decree 
shall  be  without  prejudice  to  the  rights  of  the  absent  parties. 

Rule  48. 

When  parties  numerous. — Where  the  parties  on  either  side 
are  very  numerous,  and  cannot,  without  manifest  inconvenience 
and  oppressive  delays  in  the  suit,  be  all  brought  before  it,  the 
court  in  its  discretion  may  dispense  with  making  all  of  them  par- 
ties, and  may  proceed  in  the  suit,  having  sufficient  parties  before  it 
to  represent  all  the  adverse  interests  of  the  plaintiffs  and  the  de- 
fendants in  the  suit  properly  before  it.  But.  in  such  cases  the 
decree  shall  be  without  prejudice  to  the  rights  and  claims  of  all  the 
absent  parties. 

Rule  49. 

Trustees,  etc,  as  parties. — In  all  suits  concerning  real  estate 
which  is  vested  in  trustees  by  devise,  and  such  trustees  are  compe- 
tent to  sell  and  give  discharges  for  the  proceeds  of  the  sale,  and  for 
the  rents  and  profits  of  the  estate,  such  trustees  shall  represent  the 
persons  beneficially  interested  in  the  estate,  or  the  proceeds,  or  the 
rents  and  profits,  in  the  same  manner  and  to  the  same  extent  as 
the  executors  or  administrators  in  suits  concerning  personal  estate 
represent  the  persons  beneficially  interested  in  such  personal  estate ; 
and  in  such  cases  it  shall  not  be  necessary  to  make  the  persons 
beneficially  interested  in  such  real  estate,  or  rents  and  profits,  par- 
ties to  the  suit ;  but  the  court  may,  upon  consideration  of  the  mat- 
ter on  the  hearing,  if  it  shall  so  think  fit,  order  such  persons  to  be 
made  parties. 

Rule  50. 

When  heir-at-law  a  necessary  party. — In  suits  to  execute 
the  trusts  of  a  will,  it  shall  not  be  necessary  to  make  the  heir-at- 
law  a  party ;  but  the  plaintiff  shall  be  at  liberty  to  make  the  heir- 
at-law  a  party  where  he  desires  to  have  the  will  established  against 
him. 


equity  rules.  561 

Rule  51. 

Joint  and  several  debtors. — In  all  cases  in  which  the  plain- 
tiff has  a  joint  and  several  demand  against  several  persons,  either 
as  principals  or  sureties,  it  shall  not  be  necessary  to  bring  before 
the  court,  as  parties  to  a  suit  concerning  such  demand,  all  the  per- 
sons liable  thereto ;  but  the  plaintiff  may  proceed  against  one  or 
more  of  the  persons  severally  liable. 

Rule  52. 

Defect  of  parties  in  bill. — Where  the  defendant  shall,  by 
his  answer,  suggest  that  the  bill  is  defective  for  want  of  parties,  the 
plaintiff  shall  be  at  liberty,  within  fourteen  days  after  answer  filed, 
to  set  down  the  cause  for  argument  upon  that  objection  only;  and 
the  purpose  for  which  the  same  is  so  set  down  shall  be  notified  by 
an  entry,  to  be  made  in  the  clerk's  order-book,  in  the  form  or  to  the 
effect  following,  that  is  to  say :  "  Set  down  upon  the  defendant's 
objection  for  want  of  parties."  And  where  the  plaintiff  shall  not 
so  set  down  his  cause,  but  shall  proceed  therewith  to  a  hearing,  not- 
withstanding an  objection  for  want  of  parties  taken  by  the  answer, 
he  shall  not,  at  the  hearing  of  the  cause,  if  the  defendant's  objec- 
tion shall  then  be  allowed,  be  entitled  as  of  course  to  an  order  for 
liberty  to  amend  his  bill  by  adding  parties.  But  the  court,  if  it 
thinks  fit,  shall  be  at  liberty  to  dismiss  the  bill. 

Rule  53. 

Defect  of  parties  suggested  at  hearing. — If  a  defendant 
shall,  at  the  hearing  of  a  cause,  object  that  a  suit  is  defective  for 
want  of  parties  not  having  by  plea  or  answer  taken  the  objection, 
and  therein  specified  by  name  or  description  the  parties  to  whom  the 
objection  applies,  the  court,  if  it  shall  think  fit,  shall  be  at  liberty 
to  make  a  decree  saving  the  rights  of  the  absent  parties. 

Rule  54. 

When  party  is  nominal. — Where  no  account,  payment,  convey- 
ance or  other  direct  relief  is  sought  against  a  party  to  a  suit,  not 
being  an  infant,  the  party,  upon  service  of  the  subpoena  upon  him, 
need  not  appear  and  answer  the  bill  unless  the  plaintiff  specially  re- 
quires him  so  to  do  by  the  prayer  of  his  bill ;  but  he  may  appear 
and  answer  at  his  option,  and  if  he  does  not  appear  and  answer  he 
36 


562  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

shall  be  bound  by  all  the  proceedings  in  the  cause.  If  the  plaintiff 
shall  require  him  to  appear  and  answer,  he  shall  be  entitled  to  the 
costs  of  all  the  proceedings  against  him,  unless  the  court  shall  other- 
wise direct. 

Rule  55. 

Injunction,  when  granted  as  of  course. — Whenever  an  in- 
junction is  asked  for  by  the  bill  to  stay  proceedings  at  law,  if  the 
defendant  do  not  enter  his  appearance  and  plead,  demur  or  answer 
to  the  same  within  the  time  prescribed  therefor  by  these  rules,  the 
plain tiif  shall  be  entitled  as  of  course,  upon  motion  without  notice, 
to  such  injunction.  But  special  injunctions  shall  be  grantable  only 
upon  due  notice  to  the  other  party  by  the  court  in  term,  or  by  a 
judge  thereof  in  vacation,  after  a  hearing,  which  may  be  ex  parte 
if  the  adverse  party  does  not  appear  at  the  time  and  place  ordered. 
In  every  case  where  an  injunction,  either  the  common  injunction  or 
a  special  injunction,  is  awarded  in  vacation,  it  shall,  unless  previ- 
ously dissolved  by  the  judge  granting  the  same,  continue  until  the 
next  term  of  the  court,  or  until  it  is  dissolved  by  some  other  order 
of  the  court. 

Rule  56. 

Bill  of  revivor  in  case  of  abatement. — Whenever  a  suit  in 
equity  shall  become  abated  by  the  death  of  either  party,  or  by  any 
other  event,  the  same  may  be  revived  by  a  bill  of  revivor,  or  a  bill 
in  the  nature  of  a  bill  of  revivor,  as  the  circumstances  of  the  case 
may  require,  filed  by  the  proper  parties  entitled  to  revive  the  same, 
which  bill  may  be  filed  in  the  clerk's  office  at  any  time ;  and  upon 
suggestion  of  the  facts  the  proper  process  of  subpoena  shall,  as  of 
course,  be  issued  by  the  clerk,  requiring  the  proper  representatives 
of  the  other  party  to  appear  and  show  cause,  if  any  they  have,  why 
the  cause  should  not  be  revived.  And  if  no  cause  shall  be  shown 
at  the  next  rule-day  which  shall  occur  after  fourteen  days  from  the 
time  of  the  service  of  the  same  process,  the  suit  shall  stand  revived 
as  of  course. 

Rule  57. 

Supplemental  bill,  when  proper. — Whenever  any  suit  in 
equity  shall  become  defective,  from  any  event  happening  after  the 
filing  of  the  bill  (as,  for  example,  by  change  of  interest  in  the  par- 


EQUITY   RULES.  663 

ties),  or  for  any  other  reason  a  supplemental  bill,  or  a  bill  in  the 
nature  of  a  supplemental  bill,  may  be  necessary  to  be  filed  in  the 
cause,  leave  to  file  the  same  may  be  granted  by  any  judge  of  the 
court  on  any  rule-day,  upon  proper  cause  shown  and  due  notice  to 
the  other  party.  And  if  leave  is  granted  to  file  such  supplemental 
bill,  the  defendant  shall  demur,  plead  or  answer  thereto  on  the  next 
succeeding  rule-day  after  the  supplemental  bill  is  filed  in  the  clerk's 
oflBce,  unless  some  other  time  shall  be  assigned  by  a  judge  of  the 
court. 

KuLE  58. 

What  need  not  be  set  forth. — It  shall  not  be  necessary  in  any 
bill  of  revivor  or  supplemental  bill  to  set  forth  any  of  the  state- 
ments in  the  original  suit  unless  the  special  circumstances  of  the 
case  may  require  it. 

Rule  59. 

Answer  ;  before  whom  verified. — Every  defendant  may  swear 
to  his  answer  before  any  justice  or  judge  of  any  court  of  the  United 
States,  or  before  any  commissioner  appointed  by  any  circuit  court 
to  take  testimony  or  depositions,  or  before  any  master  in  chancery 
appointed  by  any  circuit  court,  or  before  any  judge  of  any  court  of 
a  state  or  territory. 

Rule  60. 

When  amendable. — After  an  answer  is  put  in  it  may  be  amended 
as  of  course,  in  any  matter  of  form,  or  by  filling  up  a  blank,  or 
correcting  a  date,  or  reference  to  a  document  or  other  small  matter, 
and  be  re- sworn  at  any  time  before  a  replication  is  put  in  or  the 
cause  is  set  down  for  a  hearing  upon  bill  and  answer.  But  after 
replication,  or  such  setting  down  for  a  hearing,  it  shall  not  be 
amended  in  any  material  matters,  as  by  adding  new  facts  or  de- 
fences or  qualifying  or  altering  the  original  statements,  except  by 
special  leave  of  the  court  or  of  a  judge  thereof,  upon  motion  and 
cause  shown  after  due  notice  to  the  adverse  party,  supported,  if  re- 
quired, by  affidavit.  And  in  every  case  where  leave  is  so  granted, 
the  court,  or  the  judge  granting  the  same,  may,  in  his  discretion, 
require  that  the  same  be  separately  engrossed  and  added  as  a  dis- 
tinct amendment  to  the  original  answer,  so  as  to  be  distinguishable 
therefrom. 


56i         federal  pleading,  practice  and  procedure. 

Rule  61. 
When  exceptions  to  be  taken. — After  an  answer  is  filed  on 
any  rule-day  the  plaintiff  shall  be  allowed  until  the  next  succeeding 
rule-day  to  file  in  the  clerk's  office  exceptions  thereto  for  insuffi- 
ciency, and  no  longer,  unless  a  longer  time  shall  be  allowed  for  the 
purpose,  upon  cause  shown  to  the  court  or  a  judge  thereof;  and  if 
no  exception  shall  be  filed  thereto  within  that  period,  the  answer 
shall  be  deemed  and  taken  to  be  sufficient. 

Rule  62. 
Separate  answers;  costs  on. — When  the  same  solicitor  is  em- 
ployed for  two  or  more  defendants,  and  separate  answers  shall  be  filed, 
or  other  proceedings  had  by  two  or  more  of  the  defendants  separately, 
costs  shall  not  be  allowed  for  such  separate  answers  or  other  pro- 
ceedings, unless  a  master,  upon  reference  to  him,  shall  certify  that 
such  separate  answers  and  other  proceedings  were  necessary  or 
proper,  and  ought  not  to  have  been  joined  together. 

Rule  63. 

When  exceptions  set  down  for  hearing. — When  exceptions 
shall  be  filed  to  the  answer  for  insufficiency  within  the  period  pre- 
scribed by  these  rules,  if  the  defendant  shall  not  submit  to  the  same 
and  file  an  amended  answer  on  the  next  succeeding  rule-day,  the 
plaintiff  shall  forthwith  set  them  down  for  a  hearing  on  the  next 
succeeding  rule-day  thereafter  before  a  judge  of  the  court,  and  shall 
enter  as  of  course,  in  the  order-book,  an  order  for  that  purpose. 
And  if  he  shall  not  so  set  down  the  same  for  a  hearing,  the  excep- 
tions shall  be  deemed  abandoned,  and  the  answer  shall  be  deemed 
sufficient ;  provided,  however,  that  the  court  or  any  judge  thereof 
may,  for  good  cause  shown,  enlarge  the  time  for  filing  exceptions,  or 
for  answering  the  same,  in  his  discretion,  upon  such  terms  as  he  may 
deem  reasonable. 

Rule  64. 

Answer  on  allowance  of  exceptions. — If  at  the  hearing  the 
exceptions  shall  be  allowed,  the  defendant  shall  be  bound  to  put 
in  a  full  and  complete  answer  thereto  on  the  next  succeeding  rule- 
day  ;  otherwise  the  plaintiff  shall,  as  of  course,  be  entitled  to  take 
the  bill,  so  far  as  a  matter  of  such  exceptions  is  concerned,  as  con- 
fessed, or,  at  his  election,  he  may  have  a  writ  of  attachment  to  com- 


EQUITY    RULES.  565 

pel  the  defendant  to  make  a  better  answer  to  the  matter  of  the 
exceptions ;  and  the  defendant,  when  he  is  in  custody  upon  such 
writ,  shall  not  be  discharged  therefrom  but  by  an  order  of  the  court, 
or  of  a  judge  thereof,  upon  his  putting  in  such  answer  and  comply- 
ing with  such  other  terms  as  the  court  or  judge  may  direct. 

Rule  65. 

When  exceptions  overruled. — If,  upon  argument,  the  plain- 
tiff's exceptions  to  the  answer  shall  be  overruled,  or  the  answer 
shall  be  adjudged  insuflficient,  the  prevailing  party  shall  be  entitled 
to  all  the  costs  occasioned  thereby,  unless  otherwise  directed  by  the 
court,  or  the  judge  thereof,  at  the  hearing  upon  the  exceptions. 

Rule  66. 

Replication;  when  to  be  filed. — Whenever  the  answer  of  the 
defendant  shall  not  be  excepted  to,  or  shall  be  adjudged  or  deemed 
sufficient,  the  plaintiff  shall  file  the  general  replication  thereto  on 
or  before  the  next  succeeding  rule-day  thereafter  ;  and  in  all  cases 
where  the  general  replication  is  filed,  the  cause  shall  be  deemed  to 
all  intents  and  purposes  at  issue,  without  any  rejoinder  or  other 
pleading  on  either  side.  If  the  plaintiff  shall  omit  or  refuse  to  file 
such  replication  within  the  prescribed  period,  the  defendant  shall  be 
entitled  to  an  order,  as  of  course,  for  a  dismissal  of  the  suit ;  and 
the  suit  shall  thereupon  stand  dismissed,  unless  the  court,  or  a  judge 
thereof,  shall,  upon  motion  for  cause  shown,  allow  a  replication  to  be 
filed  nunc  pro  tunc,  the  plaintiff  submitting  to  speed  the  cause  and 
to  such  other  terms  as  may  be  directed. 

Rule  67. 

Commissions;  when  taken  out. — After  the  cause  is  at  issue, 
commissions  to  take  testimony  may  be  taken  out  in  vacation  as  well 
as  in  term,  jointly  by  both  parties,  or  severally  by  either  party, 
upon  interrogatories  filed  by  the  party  taking  out  the  same  in  the 
clerk's  office,  ten  days'  notice  thereof  being  given  to  the  adverse 
party  to  file  cross-interrogatories  before  the  issuing  of  the  commis- 
sion ;  and  if  no  cross-interrogatories  are  filed  at  the  expiration  of 
the  time,  the  commission  may  issue  ex  parte. 

Who  to  name  commissioners. — In  all  cases  the  commissioner  or 
commissioners  shall  be  named  by  the  court,  or  by  a  judge  thereof. 


566  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

If  the  parties  shall  so  agree,  the  testimony  may  be  taken  upon  oral 
interrogatories  by  the  parties  or  their  agents,  without  filing  any 
written  interrogatories.  Ordered  (December  term,  1854)  that  the 
67th  rule  be  so  amended  as  to  allow  the  presiding  judge  of  any 
court  exercising  jurisdiction,  either  in  term  time  or  in  vacation,  to 
vest  in  the  clerk  of  said  court  general  power  to  name  commissioners 
to  take  testimony  in  like  manner  that  the  court  or  judge  thereof 
can  now  do  by  the  said  67th  rule. 

Notice  required. — (Ordered  December  term,  1861.)  Either 
party  may  give  notice  to  the  other  that  he  desires  the  evidence  to 
be  adduced  in  the  cause  to  be  taken  orally,  and  thereupon  all  the 
witnesses  to  be  examined  shall  be  examined  before  one  of  the  exam- 
iners of  the  court,  or  before  an  examiner  to  be  specially  appointed 
by  the  court,  the  examiner  to  be  furnished  with  a  copy  of  the  bill 
and  answer,  if  any  ;  and  such  examination  shall  take  place  in  the 
presence  of  the  parties  or  their  agents,  by  their  counsel  or  solicitors, 
and  the  witnesses  shall  be  subject  to  cross-examination  and  re-exam- 
ination, and  which  shall  be  conducted,  as  near  as  may  be,  in  the 
mode  now  used  in  common-law  courts.  The  depositions  taken  upon 
such  oral  examination  shall  be  taken  down  in  writing  by  the  exam- 
iner in  the  form  of  narrative,  unless  he  determines  the  examination 
shall  be  by  question  and  answer  in  special  instances ;  and  when  com- 
pleted, shall  be  read  over  to  the  witness  and  signed  by  him  in  the 
presence  of  the  parties  or  counsel,  or  such  of  them  as  may  attend ; 
provided^  if  the  witness  shall  refuse  to  sign  the  said  deposition, 
then  the  examiner  shall  sign  the  same ;  and  the  examiner  may  upon 
all  examinations  state  any  special  matters  to  the  court  as  he  shall 
think  fit ;  and  any  question  or  questions  which  may  be  objected  to 
shall  be  noted  by  the  examiner  upon  the  deposition,  but  he  shall 
not  have  power  to  decide  on  the  competency,  materiality  or  rele- 
vancy of  the  questions ;  and  the  court  shall  have  power  to  deal  with 
the  costs  of  incompetent,  immaterial  or  irrelevant  depositions,  or 
parts  of  them,  as  may  be  just. 

Attendance  of  witnesses. — In  case  of  refusal  of  witnesses  to 
attend,  to  be  sworn,  or  to  answer  any  question  put  by  the  examiner 
or  by  counsel  or  solicitor,  the  same  practice  shall  be  adopted  as  is 
now  practiced  with  respect  to  witnesses  to  be  produced  on 
examination  before  an  examiner  of  said  court  on  written  inter- 
rogatories. 


EQUITY    RULES.  5t)7 

Notice  of  taking. — Notice  shall  be  given  by  the  respective 
counsel  or  solicitors,  to  the  opposite  counsel  or  solicitors  or  parties, 
of  the  time  and  place  of  the  examination,  for  such  reasonable  time 
as  the  examiner  may  fix  by  order  in  each  cause. 

Transmission  of  deposition. — When  the  examination  of  wit- 
nesses before  the  examiner  is  concluded,  the  original  deposition, 
authenticated  by  the  signature  of  the  examiner,  shall  be  transmit- 
ted by  him  to  the  clerk  of  the  court,  to  be  there  filed  of  record  in 
the  same  mode  as  prescribed  in  the  thirtieth  section  of  act  of  Con- 
gress, September  24,  1789.     (See  Revised  Statutes,  §  865.) 

Testimony;  how  taken. — Testimony  may  be  taken  on  commis- 
sion in  the  usual  way  by  written  interrogatories  and  cross-interrog- 
atories, on  motion  to  the  court  in  term  time,  or  to  a  judge  in  vaca- 
tion, for  special  reasons  satisfactory  to  the  court  or  judge. 

Court  may  assign  the  time  of  taking. — Where  the  evidence 
to  be  adduced  in  a  cause  is  to  be  taken  orally,  as  provided  in  the 
order  passed  at  the  December  term,  1861,  amending  the  67th 
General  Rule,  the  court  may,  on  motion  of  either  party,  assign  a 
time  within  which  the  claimant  shall  take  his  evidence  in  support  of 
the  bill,  and  a  time  thereafter  within  which  the  defendant  shall  take 
his  evidence  in  defence,  and  a  time  thereafter  within  which  the  com- 
plainant shall  take  his  evidence  in  reply ;  and  no  further  evidence 
shall  be  taken  in  the  cause  unless  by  agreement  of  the  parties,  or 
by  leave  of  court  first  obtained  on  motion  for  cause  shown. 

Rule  68. 

Testimony  by  deposition  after  issue. — Testimony  may  also 
be  taken  in  the  cause,  after  it  is  at  issue,  by  deposition,  according 
to  the  acts  of  Congress.  But  in  such  case,  if  no  notice  is  given  to 
the  adverse  party  of  the  time  and  place  of  taking  the  deposition, 
he  shall,  upon  motion  and  aflBdavit  of  the  fact,  be  entitled  to  a 
cross-examination  of  the  witness,  either  under  a  commission  or  by 
a  new  deposition  taken  under  the  acts  of  Congress,  if  a  court  or  a 
judge  thereof  shall,  under  all  the  circumstances,  deem  it  reasonable. 

Rule  69. 

Time  allowed. — Three  months,  and  no  more,  shall  be  allowed 
for  the  taking  of  testimony  after  the  cause  is  at  issue,  unless  the 
court  or  a  judge  thereof  shall,  upon  special  cause  shown  by  either 


568  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

party,  enlarge  the  time ;  and  no  testimony  taken  after  such  period 
shall  be  allowed  to  be  read  in  evidence  at  the  hearing.  Immediately 
upon  the  return  of  the  commissions  and  depositions,  containing  the 
testimony,  into  the  clerk's  oflSce,  publication  thereof  may  be  ordered 
in  the  clerk's  office,  by  any  judge  of  the  court,  upon  due  notice  to  the 
parties,  or  it  may  be  enlarged,  as  he  may  deem  reasonable  under 
all  the  circumstances.  But,  by  consent  of  the  parties,  publication 
of  the  testimony  mjiy  at  any  time  pass  in  the  clerk's  office,  such 
consent  being  in  writing,  and  a  copy  thereof  entered  in  the  order- 
books,  or  indorsed  upon  the  deposition  or  testimony. 

Rule  70. 

When  taken;  notice. — After  any  bill  filed,  and  before  the 
defendant  hath  answered  the  same,  upon  affidavit  made  that  any  of 
the  plaintiff's  witnesses  are  aged  and  infirm,  or  going  out  of  the 
country,  or  that  any  of  them  is  a  single  witness  to  a  material  fact, 
the  clerk  of  the  court  shall  as  of  course,  upon  the  application  of 
the  plaintiff,  issue  a  commission  to  such  commissioner  or  commis- 
sioners as  a  judge  of  the  court  may  direct,  to  take  the  examination 
of  such  witness  or  witnesses  de  bene  esse  upon  giving  due  notice  to 
the  adverse  party  of  the  time  and  place  of  taking  his  testimony. 

Rule  71. 

The  last  interrogatory. — The  last  interrogatory  in  the 
written  interrogatories  to  take  testimony  now  commonly  in  use 
shall  in  the  future  be  altered,  and  stated  in  substance  thus  :  "  Do 
you  know,  or  can  you  set  forth,  any  other  matter  or  thing  which 
may  be  a  benefit  or  advantage  to  the  parties  at  issue  in  this  cause, 
or  either  of  them,  or  that  may  be  material  to  the  subject  of  this 
your  examination,  or  the  matters  in  question  in  this  cause?'  If 
yea,  set  forth  the  same  fully  and  at  large  in  your  answer." 

Rule  72. 

Defendant  to  answer  original  bill. — Where  a  defendant  in 
equity  files  a  cross-bill  for  discovery  only  against  the  plaintiff  in 
the  original  bill,  the  defendant  to  the  original  bill  shall  first  answer 
thereto,  before  the  original  plaintiff  shall  be  compellable  to  answer 
the  cross-bill.  The  answer  of  the  original  plaintiff  to  such  cross- 
bill may  be  read  and  used  by  the  party  filing  the  cross-bill  at  the 


EQUITY   RULES.  569 

hearing,  in  the  same  manner  and  under  the  same  restrictions  as  the 
answer  praying  relief  may  now  be  read  and  used. 

Rule  73. 
Account  of  personal  estate  of  deceased. — Every  decree  for 
an  account  of  the  personal  estate  of  a  testator  or  intestate  shall 
contain  a  direction  to  the  master  to  whom  it  is  referred  to  take  the 
same,  to  inquire  and  state  to  the  court  what  parts,  if  any,  of  such 
personal  estate  are  outstanding  or  undisposed  of,  unless  the  court 
shall  otherwise  direct. 

Rule  74. 

Reference;  duty  of  the  master. — Whenever  any  reference  of 
any  matter  is  made  to  a  master  to  examine  and  report  thereon,  the 
party  at  whose  instance  or  for  whose  benefit  the  reference  is  made 
shall  cause  the  same  to  be  presented  to  the  master  for  a  hearing  on 
or  before  the  next  rule-day  succeeding  the  time  when  the  reference 
was  made ;  if  he  shall  omit  to  do  so,  the  adverse  party  shall  be  at 
liberty  forthwith  to  cause  proceedings  to  be  had  before  the  master, 
at  the  costs  of  the  party  procuring  the  reference. 

Rule  75. 

Master  to  assign  time  and  place. — Upon  every  such  refer- 
ence it  shall  be  the  duty  of  the  master,  as  soon  as  he  reasonably 
can  after  the  same  is  brought  before  him,  to  assign  a  time  and 
place  for  proceedings  in  the  same,  and  to  give  due  notice  thereof 
to  each  of  the  parties  or  their  solicitors ;  and  if  either  party  shall 
fail  to  appear  at  the  time  and  place  appointed,  the  master  shall  be 
at  liberty  to  proceed  ex  parte,  or,  in  his  discretion,  to  adjourn  the 
examination  and  proceedings  to  a  future  day,  giving  notice  to  the 
absent  party  or  his  solicitor  of  such  adjournment ;  and  it  shall  be 
the  duty  of  the  master  to  proceed  with  all  reasonable  diligence  in 
every  such  reference,  and  with  the  least  practicable  delay;  and 
either  party  shall  be  at  liberty  to  apply  to  the  court,  or  a  judge 
thereof,  for  an  order  to  the  master  to  speed  the  proceedings,  and 
to  make  his  report,  and  to  certify  to  the  court  or  judge  the  reasons 
for  any  delay. 

Rule  76. 

Report;  what  shall  not  be  stated. — In  the  reports  made  by 
the  master  to  the  court  no  part  of  any  state  of  facts,  charge,  affi- 


570  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

davit,  deposition,  examination  or  answer  brought  in  or  used  before 
them  shall  be  stated  or  recited.  But  such  state  of  facts,  charge, 
aflfidavit,  deposition,  examination  or  answer  shall  be  identified,  speci- 
fied and  referred  to,  so  as  to  inform  the  court  what  state  of  facts, 
charge,  affidavit,  deposition,  examination  or  answer  were  so  brought 
in  or  used. 

Rule  77. 

Proceedings  before  master. — The  master  shall  regulate  all 
the  proceedings  in  every  hearing  before  him,  upon  every  such  refer- 
ence ;  and  he  shall  have  full  authority  to  examine  the  parties  in  the 
cause,  upon  oath,  touching  all  matters  contained  in  the  reference; 
and  also  to  require  the  production  of  all  books,  papers,  writings, 
vouchers  and  other  documents  applicable  thereto ;  and  also  to  ex- 
amine on  oath,  viva  voce,  all  witnesses  produced  by  the  parties 
before  him,  and  to  order  the  examination  of  other  witnesses  to  be 
taken,  under  a  commission  to  be  issued  upon  his  certificate  from  the 
clerk's  office,  or  by  deposition,  according  to  the  acts  of  Congress, 
or  otherwise,  as  hereinafter  provided ;  and  also  to  direct  the  mode 
in  which  the  matters  requiring  evidence  shall  be  proved  before  him  ; 
and  generally  to  do  all  other  acts,  and  direct  all  other  inquiries  and 
proceedings  in  the  matters  before  him,  which  he  may  deem  neces- 
sary and  proper  to  the  justice  and  merits  thereof  and  the  rights 
of  the  parties. 

Rule  78. 

AViTNESSES,  HOW  SUMMONED. — Witnesses  who  live  within  the 
district  may,  upon  due  notice  to  the  opposite  party,  be  summoned 
to  appear,  before  the  commissioner  appointed  to  take  testimony,  or 
before  a  master  or  examiner  appointed  in  any  cause,  by  subpoena 
in  the  usual  form,  which  may  be  issued  by  the  clerk  in  blank,  and 
filled  up  by  the  party  praying  the  same,  or  by  the  commissioner, 
master  or  examiner,  requiring  the  attendance  of  the  witnesses  at 
the  time  and  place  specified,  who  shall  be  allowed  for  attendance 
the  same  compensation  as  for  attendance  in  court ;  and  if  any  wit- 
ness shall  refuse  to  appear  or  to  give  evidence,  it  shall  be  deemed 
a  contempt  of  the  court,  which  being  certified  to  the  clerk's  office 
by  the  commissioner,  master  or  examiner,  an  attachment  may  issue 
thereupon  by  order  of  the  court  or  of  any  judge  thereof,  in  the 
same  manner  as  if  the  contempt  were  for  not  attending  or  for  re- 


EQUITY   RULES.  571 

fusing  to  give  testimony  in  the  court.  But  nothing  herein  con- 
tained shall  prevent  the  examination  of  witnesses  viva  voce  when 
produced  in  open  court,  if  the  court  shall,  in  its  discretion,  deem 
it  advisable. 

Rule  79. 

Accounts,  production,  examination  of  party. — All  parties 
accounting  before  a  master  shall  bring  in  their  respective  accounts 
in  the  form  of  debtor  and  creditor ;  and  any  of  the  other  parties 
who  shall  not  be  satisfied  with  the  accounts  so  brought  in  shall  be 
at  liberty  to  examine  the  accounting  party  viva  voce,  or  upon  inter- 
rogatories in  the  master's  office,  or  by  deposition,  as  the  master 
shall  direct. 

Rule  80. 

Affidavits,  may  be  used. — All  affidavits,  depositions  and  doc- 
uments which  have  been  previously  made,  read  or  used  in  the  court 
upon  any  proceeding  in  any  cause  or  matter,  may  be  used  before 
the  master. 

Rule  81. 

Examination  of  creditor  or  claimant. — The  master  shall 
be  at  liberty  to  examine  any  creditor  or  other  person  coming  in  to 
claim  before  him,  either  upon  written  interrogatories  or  viva  voce, 
or  in  both  modes  as  the  nature  of  the  case  may  appear  to  him  to 
require.  The  evidence  upon  such  examinations  shall  be  taken 
down  by  the  master,  or  by  some  other  person  by  his  order  and  in 
his  presence,  if  either  party  requires  it,  in  order  that  the  same  may 
be  used  by  the  court  if  necessary. 

Rule  82. 

Appointment  of  masters  and  compensation. — The  circuit 
courts  appoint  standing  masters  in  chancery  in  their  respective 
districts,  both  the  judges  concurring  in  the  appointment ;  and  they 
may  also  appoint  a  master  pro  hac  vice  in  any  particular  case.  The 
compensation  to  be  allowed  to  every  master  in  chancery  for  his 
services  in  any  particular  case  shall  be  fixed  by  the  circuit  court  in 
its  discretion,  having  regard  to  all  the  circumstances  thereof,  and 
the  compensation  shall  be  charged  upon  and  borne  by  such  of  the 
parties  in  the  cause  as  the  court  shall  direct.  The  master  shall  not 
retain  his  report  as  security  for  his  compensation  ;  but  when  the 


572  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

compensation  is  allowed  by  the  court,  he  shall  be  entitled  to  an  at- 
tachment for  the  amount  against  the  party  who  is  ordered  to  pay 
the  same  if,  upon  notice  thereof,  he  does  not  pay  it  within  the  time 
prescribed  by  the  court. 

Rule  83. 

When  may  be  filed. — The  master,  as  soon  as  his.  report  is 
ready,  shall  return  the  same  into  the  clerk's  office,  and  the  day  of 
the  return  shall  be  entered  by  the  clerk  in  the  order-book.  The 
parties  shall  have  one  month  from  the  time  of  filing  the  report  to 
file  exceptions  thereto ;  and  if  no  exceptions  are  within  that  period 
filed  by  either  party,  the  report  shall  stand  confirmed  on  the  next 
rule-day  after  the  month  is  expired.  If  the  exceptions  are  filed, 
they  shall  stand  for  hearing  before  the  court,  if  the  court  is  then 
in  session  ;  or,  if  not,  then  at  the  next  sitting  of  the  court  which 
shall  be  held  thereafter  by  adjournment  or  otherwise. 

Rule  84. 

Costs  on  exceptions. — And  in  order  to  prevent  exceptions  to 
reports  frorn  being  filed  for  frivolous  causes,  or  for  mere  delay,  the 
party  whose  exceptions  are  overruled  shall,  for  every  exception 
overruled,  pay  costs  to  the  other  party,  and  for  every  exception 
allowed  shall  be  entitled  to  costs — the  costs  to  be  fixed  in  each  case 
by  the  court,  by  a  standing  rule  of  the  circuit  court. 

Rule  85. 

Correction  of  mistakes. — Clerical  mistakes  in  decrees  or  de- 
cretal orders,  or  errors  arising  from  any  accidental  slip  or  omission, 
may,  at  any  time  before  an  actual  enrollment  thereof,  be  corrected 
by  order  of  the  court  or  a  judge  thereof,  upon  petition,  without  the 
form  or  expense  of  a  rehearing. 

Rule  86. 

What  decrees  need  not  contain  pleadings. — In  drawing  up 
decrees  and  orders,  neither  the  bill,  nor  answer,  nor  other  pleadings, 
nor  any  part  thereof,  nor  the  report  of  any  master,  nor  any  other 
prior  proceeding,  shall  be  recited  or  stated  in  the  decree  or  order ; 
but  the  decree  and  order  shall  begin,  in  substance,  as  follows: 
"  This  cause  came  on  to  be  heard  (or  to  be  further  heard,  as  the 


EQUITY   RULES.  573 

case  may  be)  at  this  time,  and  was  argued  by  counsel ;  and  there- 
upon, upon  consideration  thereof,  it  was  ordered,  adjudged  and 
decreed  as  follows,  viz.:"    [Here  insert  the  decree  or  order.] 

Rule  87. 

Guardians,  how  appointed. — Guardians  ad  litem  to  defend  a 
suit  may  be  appointed  by  the  court,  or  by  any  judge  thereof,  for 
infants  or  other  persons  who  are  under  guardianship,  or  otherwise 
incapable  to  sue  for  themselves.  All  infants  and  other  persons  so 
incapable  may  sue  by  their  guardians,  if  any,  or  by  their  prochein 
ami ;  subject,  however,  to  such  orders  as  the  court  may  direct  for 
the  protection  of  infants  and  other  persons. 

Rule  88. 

Petition,  what  to  contain. — Every  petition  for  a  rehearing 
shall  contain  the  special  matter  or  cause  on  which  such  rehearing 
is  applied  for,  shall  be  signed  by  counsel,  and  the  facts  therein 
stated,  if  not  apparent  on  the  record,  shall  be  verified  by  the  oath 
of  the  party,  or  by  some  other  person.  No  rehearing  shall  be 
granted  after  the  term  at  which  the  final  decree  of  the  court  shall 
have  been  entered  and  recorded  if  an  appeal  lies  to  the  Supreme 
Court.  But  if  no  appeal  lies,  the  petition  may  be  admitted  at  any 
time  before  the  end  of  the  next  term  of  the  court,  in  the  discretion 
of  the  court. 

Rule  89. 

Rules  may  be  made  by  circuit  courts. — The  circuit  courts 
(both  judges  concurring  therein)  may  make  any  other  and  further 
rules  and  regulations  for  the  practice,  proceedings  and  process, 
mesne  and  final,  in  their  respective  districts  not  inconsistent  with 
the  rules  hereby  prescribed,  in  their  discretion,  and  from  time  to 
time  alter  and  amend  the  same. 

Rule  90. 

Practice. — In  all  cases  where  the  rules  prescribed  by  this  court 
or  by  the  circuit  court  do  not  apply,  the  practice  of  the  circuit 
court  shall  be  regulated  by  the  present  practice  of  the  High  Court 
of  Chancery  in  England,  so  far  as  the  same  may  reasonably  be  ap- 
plied consistently  with  the  local  circumstances  and  local  conveni- 


574  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

ences  of  the  district  where  the  court  is  held,  not  as  positive  rules, 
but  as  furnishing  just  analogies  to  regulate  the  practice. 

Rule  91. 

Affirmation  in  lieu  of  oath. — Whenever,  under  these  rules, 
an  oath  is  or  may  be  required  to  be  taken,  the  party  may,  if  con- 
scientiously scrupulous  of  taking  an  oath,  in  lieu  thereof  make 
solemn  afSrmation  to  the  truth  of  the  facts  stated  by  him. 

Rule  92. 

Decree  in  foreclosure  suits. — In  suits  in  equity  for  the  fore- 
closure of  mortgages  in  the  circuit  courts  of  the  United  States,  or 
in  any  court  of  the  territories  having  jurisdiction  of  the  same,  a 
decree  may  be  rendered  for  any  balance  that  may  be  found  due  to 
the  complainant  over  and  above  the  proceeds  of  the  sale  or  sales, 
and  execution  may  issue  for  the  collection  of  the  same,  as  is  pro- 
vided in  the  8th  rule  of  this  court  regulating  the  equity  practice, 
where  the  decree  is  solely  for  the  payment  of  money. 

Rule  93. 

Appeal  in  injunction  cases  ;  discretion. — When  an  appeal 
from  a  final  decree  in  an  equity  suit,  granting  or  dissolving  an 
injunction,  is  allowed  by  a  justice  or  judge  who  took  part  in  the 
decision  of  the  cause,  he  may  in  his  discretion,  at  the  time  of  such 
allowance,  make  an  order  suspending  or  modifying  the  injunction 
during  the  pendency  of  the  appeal,  upon  such  terms  as  to  bond  or 
otherwise  as  he  m.ay  consider  proper  for  the  security  of  the  rights 
of  the  opposite  party. 


RULES  OF  PRACTICE 

FOR    THE 

COURTS  OF  THE  UNITED  STATES 


ADMIRALTY  AND  MARITLME  JURISDICTION,  ON   THE   INSTANCE    SIDE 

OF   THE  COURT,  IN  PURSUANCE  OF  THE  ACT  OF   THE 

23d  OF  AUGUST,  1842,  CHAPTER  188. 


Rule  1. 

Process,  issue  and  service  of. — No  mesne  process  shall  issue 
from  the  district  courts  in  any  civil  cause  of  admiralty  and  maritime 
jurisdiction  until  the  libel,  or  libel  of  information,  shall  be  filed  in 
the  clerk's  office  from  which  such  process  is  to  issue.  All  process 
shall  be  served  by  the  marshal,  or  by  his  deputy,  or  where  he  or 
they  are  interested,  by  some  discreet  and  disinterested  person  ap- 
pointed by  the  court. 

Rule  2. 

In  suits  in  personam. — In  suits  in  personam  the  mesne  process 
may  be  by  a  simple  warrant  of  arrest  of  the  person  of  the  defendant 
in  the  nature  of  a  capias,  or  by  a  warrant  of  arrest  of  the  person  of 
the  defendant,  with  a  clause  therein  that,  if  he  cannot  be  found,  to 
attach  his  goods  and  chattels  to  the  amount  sued  for ;  or  if  such 
property  cannot  be  found,  to  attach  his  credits  and  effects  to  the 
amount  sued  for  in  the  hands  of  the  garnishees  named  therein ;  or 
by  a  simple  monition,  in  the  nature  of  a  summons  to  appear  and 
answer  to  the  suit,  as  the  libellant  shall,  in  his  libel  or  information, 
pray  for  or  elect. 

Rule  3. 

Bail,  summary  process. — In  all  suits  in  personam  where  a 
simple  warrant  of  arrest  issues  and  is  executed,  the  marshal  may 


676  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

take  bail,  with  sufficient  sureties,  from  the  party  arrested,  by  bond 
or  stipulation,  upon  condition  that  he  will  appear  in  the  suit  and 
abide  by  all  orders  of  the  court,  interlocutory  or  final,  in  the  cause, 
and  pay  the  money  awarded  by  the  final  decree  rendered  therein  in 
the  court  to  which  the  process  is  returnable,  or  in  any  appellate 
court.  And  upon  such  bond  or  stipulation  summary  process  of 
execution  may  and  shall  be  issued  against  the  principal  and  sureties 
by  the  court  to  which  such  process  is  returnable,  to  enforce  the  final 
decree  so  rendered,  or  upon  appeal  by  the  appellate  court. 

Rule  4. 

Attachment,  when  dissolved. — In  all  suits  in  personam  where 
goods  and  chattels,  or  credits  and  efi'ects,  are  attached  under  such 
warrant  authorizing  the  same,  the  attachment  may  be  dissolved  by 
order  of  the  court  to  which  the  same  -warrant  is  returnable,  upon 
the  defendant,  whose  property  is  so  attached,  giving  a  bond  or 
stipulation,  with  sufficient  sureties,  to  abide  by  all  orders,  inter- 
locutory or  final,  of  the  court,  and  pay  the  amount  awarded  by  the 
final  decree  rendered  in  the  court  to  which  the  process  is  returnable, 
or  in  any  appellate  court;  and  upon  such  bond  or  stipulation 
summary  process  of  execution  shall  and  may  be  issued  against  the 
principal  and  sureties  by  the  court  to  which  such  warrant  is  return- 
able, to  enforce  the  final  decree  so  rendered,  or  upon  appeal  by  the 
appellate  court. 

Rule  5. 

Bonds  or  stipulations. — Bonds  or  stipulations  in  admiralty 
suits  may  be  given  and  taken  in  open  court,  or  at  chambers,  or 
before  any  commissioner  of  the  court  who  is  authorized  by  the  court 
to  take  affidavits  of  bail  and  depositions  in  cases  pending  before  the 
court,  or  any  commissioner  of  the  United  States  authorized  by  law 
to  take  bail  and  affidavits  in  civil  cases. 

Rule  6. 

Reduction  of  bail  ;  new  sureties. — In  all  suits  in  personam 
where  bail  is  taken  the  court  may  upon  motion,  for  due  cause  shown, 
reduce  the  amount  of  the  sum  contained  in  the  bond  or  stipulation 
therefor ;  and  in  all  cases  where  a  bond  or  stipulation  is  taken  as 
bail,  or  upon  dissolving  an  attachment  of  property  as  aforesaid,  if 


ADMIRALTY  RULES.  577 

either  of  the  sureties  shall  become  insolvent  pending  the  suit,  new 
sureties  may  be  required  by  the  order  of  the  court  to  be  given, 
upon  motion  and  due  proof  thereof. 

Rule  7. 

Warrant  of  arrest  may  issue. — In  suits  in  personam  no 
warrant  of  arrest,  either  of  the  person  or  property  of  the  defendant, 
shall  issue  for  a  sum  exceeding  five  hundred  dollars,  unless  by  the 
special  order  of  the  court,  upon  afiidavit  or  other  proper  proof 
showing  the  propriety  thereof. 

Rule  8. 

Ship's  tackle,  etc  ,  how  obtained. — In  all  suits  in  rem  against 
a  ship,  her  tackle,  sails,  apparel,  furniture,  boats  or  other  appur- 
tenances, if  such  tackle,  sails,  apparel,  furniture,  boats  or  other 
appurtenances  are  in  the  possession  or  custody  of  any  third  person, 
the  court  may,  after  a  due  monition  to  such  third  person  and  a 
hearing  of  the  cause,  if  any,  why  the  same  should  not  be  delivered 
over,  award  and  decree  that  the  same  be  delivered  into  the  custody 
of  the  marshal  or  other  proper  officer,  if,  upon  the  hearing,  the 
same  is  required  by  law  and  justice. 

Rule  9. 

Cases  of  seizure,  process  in. — In  all  cases  of  seizure,  and  in 
other  suits  and  proceedings  in  rem,  the  process,  unless  otherwise 
provided  for  by  statute,  shall  be  by  a  warrant  of  arrest  of  the  ship, 
goods  or  other  thing  to  be  arrested ;  and  the  marshal  shall  there- 
upon arrest  and  take  the  ship,  goods  or  other  thing  into  his  pos- 
session for  safe  custody,  and  shall  cause  public  notice  thereof,  and 
of  the  time  assigned  for  the  return  of  such  process  and  the  hearing 
of  the  cause,  to  be  given  in  such  newspaper  within  the  district  as 
the  district  court  shall  order ;  and  if  there  is  no  newspaper  pub- 
lished therein,  then  in  such  other  public  places  in  the  district  as 
the  court  shall  direct. 

Rule  10. 

Perishable  goods  may  be  sold. — In  all  cases  where  any  goods 
or  other  things  are  arrested,  if  the  same  are  perishable  or  are  liable 
37 


578  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

to  deterioration,  decay  or  injury  by  being  detained  in  custody 
pending  tbe  suit,  the  court  may,  upon  the  application  of  either 
party,  in  its  discretion,  order  the  same  or  so  much  thereof  to  be 
sold  as  shall  be  perishable  or  liable  to  depreciation,  decay  or  injury; 
and  the  proceeds,  or  so  much  thereof  as  shall  be  a  full  security  to 
satisfy  in  decree,  to  be  brought  into  court  to  abide  the  event  of  the 
suit;  or  the  court  may,  upon  the  application  of  the  claimant,  order 
a  delivery  thereof  to  him,  upon  a  due  appraisement  to  be  had  under 
its  direction,  either  upon  the  claimant's  depositing  in  court  so  much 
money  as  the  court  shall  order,  or  upon  his  giving  a  stipulation, 
with  sureties  in  such  sum  as  the  court  shall  direct,  to  abide  by  and 
pay  the  money  awarded  by  the  final  decree  rendered  by  the  court 
or  the  appellate  court,  if  any  appeal  intervenes,  as  the  one  or  the 
other  course  shall  be  ordered  by  the  court. 

Rule  11. 

Ship  ;  delivery  to  claimant. — In  like  manner,  where  any  ship 
shall  be  arrested,  the  same  may,  upon  the  application  of  the  claim- 
ant, be  delivered  to  him,  upon  a  due  appraisement  to  be  had  under 
the  direction  of  the  court,  upon  the  claimant's  depositing  in  court 
so  much  money  as  the  court  shall  order,  or  upon  his  giving  a  stipu- 
lation, with  sureties  as  aforesaid ;  and  if  the  claimant  shall  decline 
any  such  application,  then  the  court  may,  in  its  discretion,  upon 
the  application  of  either  party,  upon  due  cause  shown,  order  a  sale 
of  such  ship,  and  the  proceeds  thereof  to  be  brought  into  court,  or 
otherwise  disposed  of  as  it  may  deem  most  for  the  benefit  of  all 
concerned. 

Rule  12. 

Suits  by  material-men. — In  all  suits  by  material-men  for  sup- 
plies or  repairs,  or  other  necessaries,  the  libellant  may  proceed 
against  the  ship  and  freight  in  rem,  or  against  the  master  or  owner 
alone  in  personam. 

Rule  13. 

Suits  for  mariners'  wages. — In  all  suits  for  mariners'  wages 
the  libellant  may  proceed  against  the  ship,  freight  and  master,  or 
against  the  ship  and  freight,  or  against  the  owner  or  the  master 
alone  in  personam. 


admiralty  rules.  579 

Rule  14. 

Suits  for  pilotage. — In  all  suits  for  pilotage  the  libellant  may 
proceed  against  the  ship  and  master,  or  against  the  ship,  or  against 
the  owner  alone,  or  the  master  alone,  in  personam. 

Rule  15. 

Suits  for  damage  by  collision. — In  all  suits  for  damage  bj 
collision  the  libellant  may  proceed  against  the  ship  and  master,  or 
against  the  ship  alone,  or  against  the  master  or  the  owner  alone, 
in  personam. 

Rule  16. 

Suits  for  assault  and  battery. — In  all  suits  for  an  assault 
or  beating  on  the  high  seas,  or  elsewhere  within  the  admiralty  and 
maritime  jurisdiction,  the  suit  shall  be  in  personam  only. 

Rule  17. 

Suits  for  hypothecation. — In  all  suits  against  the  ship  or 
freight  founded  upon  a  mere  maritime  hypothecation,  either  express 
or  implied,  of  the  master  for  moneys  taken  up  in  a  foreign  port  for 
supplies  or  repairs,  or  other  necessaries  for  the  voyage,  without  any 
claim  of  marine  interest,  the  libellant  may  proceed  either  in  rem  or 
against  the  master  or  the  owner  alone  in  personam. 

Rule  18. 

Suits  on  bottomry  bonds  in  rem  and  in  personam. — In  all 
suits  on  bottomry  bonds,  properly  so  called,  the  suit  shall  be  in  rem 
only  against  the  property  hypothecated,  or  the  proceeds  of  the 
property,  in  whosesoever  hands  the  same  may  be  found,  unless  the 
master  has,  without  authority,  given  the  bottomry  bond,  or  by  his 
fraud  or  misconduct  has  avoided  the  same,  or  has  subtracted  the 
property,  or  unless  the  owner  has,  by  his  own  misconduct  or  wrong, 
lost  or  subtracted  the  property,  in  which  latter  cases  the  suit  may 
be  in  personam  against  the  wrongdoer. 

Rule  19. 

Suits  for  salvage. — In  all  suits  for  salvage  the  suit  may  be  in 
rem  against  the  property  saved,  or  the  proceeds  thereof,  or  in  per- 


580  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

sonam  against  the  party  at  whose  request  and  for  whose  benefit  the 
salvage  service  has  been  performed. 

Rule  20. 

In  petitory  and  possessory  suits. — In  all  petitory  and  pos- 
sessory suits  between  part  owners  or  adverse  proprietors,  or  by  the 
owners  of  a  ship,  or  the  majority  thereof,  against  the  master  of  a 
ship  for  the  ascertainment  of  the  title  and  delivery  of  the  possession, 
or  for  the  possession  only,  or  by  one  or  more  part  owners  against 
the  others  to  obtain  security  for  the  return  of  the  ship  from  any 
voyage  undertaken  without  their  consent,  or  by  one  or  more  part 
owners  against  the  others  to  obtain  possession  of  the  ship  for  any 
voyage,  upon  giving  security  for  the  safe  return  thereof,  the  process 
shall  be  by  an  arrest  of  the  ship  and  by  a  monition  to  the  adverse 
party  or  parties  to  appear  and  make  answer  to  the  suit. 

Rule  21. 

Decrees,  remedy  on.^ — In  all  cases  of  a  final  decree  for  the 
payment  of  money  the  libellant  shall  have  a  writ  of  execution,  in 
the  nature  of  a  fieri  facias,  commanding  the  marshal  or  his  deputy 
to  levy  and  collect  the  amount  thereof  out  of  the  goods  and  chattels, 
lands  and  tenements,  or  other  real  estate  of  the  defendant  or  stipu- 
lators. 

Rule  22. 

Informations  and  libels  on  seizures. — All  informations  and 
libels  of  information  upon  seizures  for  any  breach  of  the  revenue  or 
navigation  or  other  laws  of  the  United  States  shall  state  the  place 
of  seizure,  whether  it  be  on  land  or  on  the  high  seas,  or  on  navigable 
waters  within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  the  district  within  which  the  property  is  brought  and 
where  it  then  is.  The  information  or  libel  of  information  shall  also 
propound  in  distinct  articles  the  matters  relied  on  as  grounds  or 
causes  of  forfeiture,  and  aver  the  same  to  be  contrary  to  the  form 
of  the  statute  or  statutes  of  the  United  States  in  such  case  provided, 
as  the  case  may  require,  and  shall  conclude  with  a  prayer  of  due 
process  to  enforce  the  forfeiture,  and  to  give  notice  to  all  persons 
concerned  in  interest  to  appear  and  show  cause  at  the  return  day 
of  the  process  why  the  forfeiture  should  not  be  decreed. 


admiralty  rules.  581 

Rule  23. 
Libels,  civil  and  maritime,  in  instance  causes. — All  libels 
in  instance  causes,  civil  or  maritime,  shall  state  the  nature  of  the 
cause ;  as,  for  example,  that  it  is  a  cause,  civil  and  maritime,  of 
contract,  or  of  tort  or  damage,  or  of  salvage,  or  of  possession,  or 
otherwise,  as  the  case  may  be ;  and  if  the  libel  be  in  rem,  that  the 
property  is  within  the  district ;  and  if  in  personam,  the  names  and 
occupations  and  places  of  residence  of  the  parties.  The  libel  shall 
also  propound  and  articulate  in  distinct  articles  the  various  allega- 
tions of  fact  upon  which  the  libellant  relies  in  support  of  his  suit, 
so  that  the  defendant  may  be  enabled  to  answer  distinctly  and  sep- 
arately the  several  matters  contained  in  each  article ;  and  it  shall 
conclude  with  a  prayer  of  due  process  to  enforce  his  rights  in  rem 
or  in  personam  (as  the  case  may  require),  and  for  such  relief  and 
redress  as  the  court  is  competent  to  give  in  the  premises.  And  the 
libellant  may  further  require  the  defendant  to  answer  on  oath  all 
interrogatories  propounded  by  him  touching  all  and  singular  the 
allegations  in  the  libel  at  the  close  or  conclusion  thereof. 

Rule  24. 

Amendments  to  libels,  when  of  course. — In  all  informations 
and  libels  in  causes  of  admiralty  and  maritime  jurisdiction,  amend- 
ments, in  matters  of  form,  may  be  made  at  any  time  on  motion  to 
the  court  as  of  course.  And  new  counts  may  be  filed,  and  amend- 
ments, in  matters  of  substance,  may  be  made,  upon  motion,  at  any 
time  before  the  final  decree,  upon  such  terms  as  the  court  shall 
impose.  And  where  any  defect  of  form  is  set  down  by  the  de- 
fendant upon  special  exceptions  and  is  allowed,  the  court  may,  in 
granting  leave  to  amend,  impose  terms  upon  the  libellant. 

Rule  25. 

Security  for  costs,  when  required. — In  all  cases  of  libels  in 
personam  the  court  may,  in  its  discretion,  upon  the  appearance  of 
the  defendant,  where  no  bail  has  been  taken  and  no  attachment  of 
property  has  been  made  to  answer  the  exigency  of  the  suit,  require 
the  defendant  to  give  a  stipulation,  with  sureties  in  such  sum  as  the 
court  shall  direct,  to  pay  all  costs  and  expenses  which  shall  be 
awarded  against  him  in  the  suit,  upon  the  final  adjudication  thereof 
or  by  any  interlocutory  order  in  the  progress  of  the  suit. 


582         federal  pleading,  practice  and  procedure. 

Rule  26. 

When  the  claim  must  be  verified. — In  suits  in  rem  the  party 
claiming  the  property  shall  verify  his  claim  on  oath  or  solemn 
affirmation,  stating  that  the  claimant  by  whom  or  on  whose  behalf 
the  claim  is  made  is  the  true  and  bona  fide  owner,  and  that  no  other 
person  is  the  owner  thereof.  And  where  the  claim  is  put  in  by  an 
agent  or  consignee,  he  shall  also  make  oath  that  he  is  duly  author- 
ized thereto  by  the  owner  ;  or  if  the  property  be,  at  the  time  of  the 
arrest,  in  the  possession  of  the  master  of  a  ship,  that  he  is  the  lawful 
bailee  thereof  for  the  owner.  And  upon  putting  in  such  claim,  the 
claimant  shall  file  a  stipulation,  with  sureties  in  such  sum  as  the 
court  shall  direct,  for  the  payment  of  all-  costs  and  expenses  which 
shall  be  awarded  against  him  by  the  final  decree  of  the  court,  or, 
upon  an  appeal,  by  the  appellate  court. 

Rule  27. 

Answer  must  be  verified, — In  all  libels  in  causes  of  civil  and 
maritime  jurisdiction,  whether  in  rem  or  in  personam,  the  answer 
of  the  defendant  to  the  allegations  in  the  libel  shall  be  on  oath  or 
solemn  affirmation ;  and  the  answer  shall  be  full  and  explicit  and 
distinct  to  each  separate  article  and  separate  allegation  in  the  libel, 
in  the  same  order  as  numbered  in  the  libel,  and  shall  also  answer 
in  like  manner  each  interrogatory  propounded  at  the  close  of  the 
libel.     (See  Rule  48.) 

Rule  28. 

Exception  to  answer. — The  libellant  may  except  to  the  suffi- 
ciency, or  fullness,  or  distinctness,  or  relevancy  of  the  answer  to 
the  articles  and  interrogatories  in  the  libel ;  and  if  the  court  shall 
adjudge  the  same  exceptions,  or  any  of  them,  to  be  good  and  valid, 
the  court  shall  order  the  defendant  forthwith,  within  such  time  as  the 
court  shall  direct,  to  answer  the  same,  and  may  further  order  the 
defendant  to  pay  such  costs  as  the  court  shall  adjudge  reasonable. 

Rule  29. 

Default  for  want  of  answer,  effect  of. — If  the  defendant 
shall  omit  or  refuse  to  make  due  answer  to  the  libel  upon  the  return 
day  of  the  process,  or  other  day  assigned  by  the  court,  the  court 
shall  pronounce  him  to  be  in  contumacy  and  default ;   and  there- 


ADMIRALTY   RULES.  583 

upon  the  libel  shall  be  adjudged  to  be  taken  pro  confesso  against 
him,  and  the  court  shall  proceed  to  hear  the  cause  ex  parte  and 
adjudge  therein  as  to  law  and  justice  shall  appertain.  But  the 
court  may,  in  its  discretion,  set  aside  the  default,  and,  upon  the 
application  of  the  defendant,  admit  him  to  make  answer  to  the  libel 
at  any  time  before  the  final  hearing  and  decree,  upon  his  payment 
of  all  the  costs  of  the  suit  up  to  the  time  of  granting  leave  therefor. 

Rule  30. 

When  further  answer  required, — In  all  cases  where  the  de- 
fendant answers,  but  does  not  answer  fully  and  explicitly  and  dis- 
tinctly to  all  the  matters  in  any  article  of  the  libel,  and  exception 
is  taken  thereto  by  the  libellant,  and  the  exception  is  allowed,  the 
court  may,  by  attachment,  compel  the  defendant  to  make  further 
answer  thereto,  or  may  direct  the  matter  of  the  exception  to  be 
taken  pro  confesso  against  the  defendant  to  the  full  purport  and 
effect  of  the  article  to  which  it  purports  to  answer,  and  as  if  no 
answer  had  been  put  in  thereto. 

Rule  31. 

What  allegation  need  not  be  answered. — The  defendant 
may  object,  by  his  answer,  to  answer  any  allegation  or  interrogatory 
contained  in  the  libel  which  will  expose  him  to  any  prosecution  or 
punishment  for  a  crime,  or  for  any  penalty  or  any  forfeiture  of  his 
property  for  any  penal  offence. 

Rule  32. 

Personal  answers  to  interrogatories  propounded  in  an- 
swer.— The  defendant  shall  have  a  right  to  require  the  personal 
answer  of  the  libellant,  upon  oath  or  solemn  affirmation,  to  any 
interrogatories  which  he  may,  at  the  close  of  his  answer,  propound 
to  the  libellant  touching  any  matters  charged  in  the  libel,  or  touch- 
ing any  matter  of  defence  set  up  in  the  answer,  subject  to  the  like 
exception  as  to  matters  which  shall  expose  the  libellant  to  any 
prosecution  or  punishment  or  forfeiture,  as  is  provided  in  the  31st 
rule.  In  default  of  due  answer  by  the  libellant  to  such  interrog- 
atories, the  court  may  adjudge  the  libellant  to  be  in  default  and 
dismiss  the  libel,  or  may  compel  his  answer  in  the  premises  by 
attachment,  or  take  the  subject-matter  of  the  interrogatory  pro 


584     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

confesso  in  favor  of  the  defendant,  as  the  court,  in  its  discretion, 
shall  deem  most  fit  to  promote  public  justice. 

Rule  33. 

Verification  of  answer  to  interrogatory,  when  dispensed 
WITH. — Where  either  the  libellant  or  the  defendant  is  out  of  the 
country,  or  unable,  from  sickness  or  other  casualty,  to  make  an 
answer  to  any  interrogatory  on  oath  or  solemn  afiSrmation  at  the 
proper  time,  the  court  may,  in  its  discretion,  in  furtherance  of  the 
due  administration  of  justice,  dispense  therewith,  or  may  award  a 
commission  to  take  the  answer  of  the  defendant  when  and  as  soon 
as  it  may  be  practicable. 

Rule  34. 

Intervention  in  rem  ;  how  to  proceed. — If  any  third  person 
shall  intervene  in  any  cause  of  admiralty  and  maritime  jurisdiction 
in  rem  for  his  own  interest,  and  he  is  entitled,  according  to  the 
course  of  admiralty  proceedings,  to  be  heard  for  his  own  interest 
therein,  he  shall  propound  the  matter  in  suitable  allegations,  to 
which,  if  admitted  by  the  court,  the  other  party  or  parties  in  the 
suit  may  be  required,  by  order  of  the  court,  to  make  due  answer ; 
and  such  further  proceedings  shall  be  had  and  decree  rendered  by 
the  court  therein  as  to  law  and  justice  shall  appertain.  But  every 
such  intervener  shall  be  required,  upon  filing  his  allegations,  to 
give  a  stipulation,  with  sureties,  to  abide  by  the  final  decree  ren- 
dered in  the  cause,  and  to  pay  all  such  costs  and  expenses  and 
damages  as  shall  be  awarded  by  the  court  upon  the  final  decree, 
whether  it  is  rendered  in  the  original  or  appellate  court. 

Rule  35. 

Stipulations,  how  given. — The  stipulations  required  by  the 
last  preceding  rule,  or  on  appeal,  or  in  any  other  admiralty  or 
maritime  proceeding,  shall  be  given  and  taken  in  the  manner  pre- 
scribed by  Rule  5  as  amended. 

Rule  36. 

Effect  of  allowance  of  exceptions. — Exceptions  may  be 
taken  to  any  libel,  allegation  or  answer,  for  surplusage,  irrelevancy, 
impertinence  or  scandal ;  and  if,  upon  reference  to  a  master,  the 


ADMIRALTY   RULES.  585 

exception  shall  be  ;-eported  to  be  so  objectionable,  and  allowed  by 
the  court,  the  matter  shall  be  expunged  at  the  cost  and  expense  of 
the  party  in  whose  libel  or  answer  the  same  is  found. 

Rule  37. 

Attachment  against  garnishee. — In  cases  of  foreign  attach- 
ment the  garnishee  shall  be  required  to  answer  on  oath  or  solemn 
affirmation  as  to  the  debts,  credits  or  effects  of  the  defendant  in  his 
hands,  and  to  such  interrogatories  touching  the  same  as  may  be 
propounded  by  the  libellant ;  and  if  he  shall  refuse  or  neglect  so  to 
do,  the  court  may  award  compulsory  process  in  personam  against 
him.  If  he  admits  any  debts,  credits  or  effects,  the  same  shall  be 
held  in  his  hands,  liable  to  answer  the  exigency  of  the  suit. 

Rule  38. 

Property  brought  into  court. — In  cases  of  mariners'  wages, 
or  bottomry,  or  salvage,  or  other  proceedings  in  rem,  where  freight 
or  other  proceeds  of  property  are  attached  to  or  are  bound  by  the 
suit,  which  are  in  the  hands  or  possession  of  any  person,  the  court 
may,  upon  due  application  by  petition  of  the  party  interested,  re- 
quire the  party  charged  with  the  possession  thereof  to  appear  and 
show  cause  why  the  same  should  not  be  brought  into  court  to  answer 
the  exigency  of  the  suit ;  and  if  no  sufficient  cause  be  shown,  the 
court  may  order  the  same  to  be  brought  into  court  to  answer  the 
exigency  of  the  suit ;  and  upon  failure  of  the  party  to  comply  with 
the  order,  may  award  an  attachment  or  other  compulsive  process  to 
compel  obedience  thereto. 

Rule  39. 

Non-appearance  of  libellant. — If,  in  any  admiralty  suit,  the 
libellant  shall  not  appear  and  prosecute  his  suit,  according  to  the 
course  and  orders  of  the  court,  he  shall  be  deemed  in  default  and 
contumacy,  and  the  court  may,  upon  the  application  of  the  defend- 
ant, pronounce  the  suit  to  be  deserted,  and  the  same  may  be  dis- 
missed with  costs. 

Rule  40. 

Decree  may  be  rescinded. — The  court  may,  in  its  discretion, 
upon  the  motion  of  the  defendant  and  the  payment  of  costs,  rescind 


586  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

the  decree  in  any  suit  in  which,  on  account  of  his  contumacy  and 
default,  the  matter  of  the  libel  shall  have  been  decreed  against  him, 
and  grant  a  rehearing  thereof  at  any  time  within  ten  days  after  the 
decree  has  been  entered,  the  defendant  submitting  to  such  further 
orders  and  terms  in  the  premises  as  the  court  may  direct. 

Rule  41. 

Sales  of  property. — All  sales  of  property  under  any  decree  of 
admiralty  shall  be  made  by  the  marshal  or  his  deputy,  or  other 
proper  officer  assigned  by  the  court  where  the  marshal  is  a  party  in 
interest,  in  pursuance  of  the  orders  of  the  court ;  and  the  proceeds 
thereof,  when  sold,  shall  be  forthwith  paid  into  the  registry  of  the 
court  by  the  officer  making  the  sale,  to  be  disposed  of  by  the  court 
according  to  law. 

Rule  42. 

Moneys  deposited. — All  moneys  paid  into  the  registry  of  the 
court  shall  be  deposited  in  some  bank  designated  by  the  court,  and 
shall  be  so  deposited  in  the  name  of  the  court,  and  shall  not  be 
drawn  out  except  by  check  or  checks,  signed  by  a  judge  of  the 
court  and  countersigned  by  the  clerk,  stating  on  whose  account 
and  for  whose  use  it  is  drawn,  and  in  what  suit  and  out  of  what 
fund  in  particular  it  is  paid.  The  clerk  shall  keep  a  regular  book, 
containing  a  memorandum  and  copy  of  all  the  checks  so  drawn  and 
the  date  thereof. 

Rule  43. 

Intervenor  for  proceeds. — Any  person  having  an  interest  in 
any  proceeds  in  the  registry  of  the  court  shall  have  a  right,  by 
petition  and  summary  proceeding,  to  intervene  pro  interesse  suo 
for  a  delivery  thereof  to  him ;  and  upon  due  notice  to  the  adverse 
parties,  if  any,  the  court  shall  and  may  proceed  summarily  to  hear 
and  decide  thereon,  and  to  decree  therein  according  to  law  and 
justice.  And  if  such  petition  or  claim  shall  be  deserted,  or,  upon 
a  hearing,  be  dismissed,  the  court  may,  in  its  discretion,  award 
costs  against  the  petitioner  in  favor  of  the  adverse  party. 

Rule  44. 

Reference  to  commissioners. — In  cases  where  the  court  shall 
deem  it  expedient  or  necessary  for  the  purposes  of  justice,  the  court 


ADMIRALTY   RULES.  587 

may  refer  any  matters  arising  in  the  progress  o  the  suit  to  one  or 
more  commissioners,  to  be  appointed  by  the  court,  to  hear  the 
parties  and  make  report  therein.  And  such  commissioner  or  com- 
missioners shall  have  and  possess  all  the  powers  in  the  premises 
which  are  usually  given  to  or  exercised  by  masters  in  chancery  in 
references  to  them,  including  the  power  to  administer  oaths  to  and 
to  examine  the  parties  and  witnesses  touching  the  premises. 

Rule  45. 

Appeals,  when  made. — All  appeals  from  the  district  to  the 
circuit  court  must  be  made  while  the  court  is  sitting,  or  within  such 
other  period  as  shall  be  designated  by  the  district  court  by  its  gen- 
eral rules  or  by  an  order  specially  made  in  the  particular  suit,  or 
in  case  no  such  rule  or  order  be  made,  then  within  thirty  days  from 
the  rendering  of  the  decree. 

Rule  46. 

Courts  to  regulate  practice. — In  all  cases  not  provided  for 
by  the  foregoing  rules  the  district  and  circuit  courts  are  to  regulate 
the  practice  of  the  said  courts  respectively,  in  such  manner  as  they 
shall  deem  most  expedient  for  the  due  administration  of  justice  in 
suits  in  admiralty. 

Rule  47. 

Bail,  when  taken. — In  all  suits  in  personam  where  a  simple 
warrant  of  arrest  issues  and  is  executed,  bail  shall  be  taken  by  the 
marshal  and  the  court  in  those  cases  only  in  which  it  is  required  by 
the  laws  of  the  state  where  an  arrest  is  made  upon  similar  or  anal- 
ogous process  issuing  from  the  state  courts. 

Imprisonment  for  debt. — And  imprisonment  for  debt,  on  pro- 
cess issuing  out  of  the  admiralty  court,  is  abolished  in  all  cases, 
where,  by  the  laws  of  the  state  in  which  the  court  is  held,  imprison- 
ment for  debt  has  been  or  shall  be  hereafter  abolished,  upon  similar 
or  analogous  process  issuing  from  a  state  court. 

Rule  48. 

Answer,  sufficiency  of. — The  27th  rule  shall  not  apply  to 
cases  where  the  sum  or  value  in  dispute  does  not  exceed  fifty  dollars, 
exclusive  of  costs,  unless  the  district  court    hall  be  of  opinion  that 


588  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

the  proceedings  prescribed  by  that  rule  are  necessary  for  the  pur- 
poses of  justice  in  the  case  before  the  court. 

All  rules  and  parts  of  rules  heretofore  adopted  inconsistent  with 
this  order  are  hereby  repealed  and  annulled. 

Rule  49. 

Further  proof,  how  taken  on  appeal. — Further  proof  taken 
in  a  circuit  court  upon  an  admiralty  appeal  shall  be  by  deposition 
taken  before  some  commissioner  appointed  by  a  circuit  court  pur- 
suant to  the  acts  of  Congress  in  that  behalf,  or  before  some  officer 
authorized  to  take  depositions  by  the  30th  section  of  the  act  of 
Congress  of  the  24th  of  September,  1789  (see  Revised  Statutes, 
§  865),  upon  an  oral  examination  and  cross-examination,  unless  the 
court  in  which  such  appeal  shall  be  pending,  or  one  of  the  judges 
thereof,  shall,  upon  motion,  allow  a  commission  to  issue  to  take  such 
depositions  upon  written  interrogatories  and  cross-interrogatories. 
When  such  deposition  shall  be  taken  by  oral  examination,  a  notifi- 
cation from  the  magistrate  before  whom  it  is  to  be  taken,  or  from 
the  clerk  of  the  court  in  which  such  appeal  shall  be  pending,  to  the 
adverse  party  to  be  present  at  the  taking  of  the  same,  and  to  put 
interrogatories,  if  he  think  fit,  shall  be  served  on  the  adverse  party 
or  his  attorney,  allowing  time  for  their  attendance  after  being  noti- 
fied not  less  than  twenty-four  hours,  and  in  addition  thereto  one 
day,  Sundays  exclusive,  for  every  twenty  miles'  travel ;  provided, 
that  the  court  in  which  such  appeal  may  be  pending,  or  either  of 
the  judges  thereof,  may,  upon  motion,  increase  or  diminish  the 
length  of  notice  above  required. 

Rule  50. 

Oral  evidence,  when  admissible  on  appeal. — When  oral  evi- 
dence shall  be  taken  down  by  the  clerk  of  the  district  court  pur- 
suant to  the  above-mentioned  section  of  the  act  of  Congress,  and 
shall  be  transmitted  to  the  circuit  court,  the  same  may  be  used  in 
evidence  on  the  appeal,  saving  to  each  party  the  right  to  take  the 
depositions  of  the  same  witnesses,  or  either  of  them,  if  he  should  so 

elect. 

Rule  51. 

New  facts  in  answer. — When  the  defendant,  in  his  answer,  al- 
leges new  facts,  these  shall  be  considered  as  denied  by  the  libellant, 


ADMIRALTY   RULES.  589 

and  no  replication,  general  or  special,  shall  be  allowed.  But  within 
such  time  after  the  answer  is  filed  as  shall  be  fixed  by  the  district 
court,  either  by  general  rule  or  by  special  order,  the  libellant  may 
a"mend  his  libel  so  as  to  confess  and  avoid,  or  explain,  or  add  to  the 
new  matters  set  forth  in  the  answer  ;  and  within  such  time  as  may 
be  fixed  in  like  manner,  the  defendant  shall  answer  such  amend- 
ments. 

Rule  52. 

1.  Records  on  appeal. — The  clerks  of  the  district  courts  shall 
make  up  the  records  to  be  transmitted  to  the  circuit  courts  on  ap- 
peals, so  that  the  same  shall  contain  the  following : 

1.  The  style  of  the  court. 

2.  The  names  of  the  parties,  setting  forth  the  original  parties, 
and  those  who  have  become  parties  before  the  appeal,  if  any  change 
has  taken  place. 

3.  If  bail  was  taken,  or  property  was  attached  or  arrested,  the 
process  of  the  arrest  or  attachment  and  the  service  thereof,  all  bail 
and  stipulations,  and,  if  any  sale  has  been  made,  the  orders,  war- 
rants and  reports  relating  thereto. 

4.  The  libel,  with  the  exhibits  annexed  thereto. 

5.  The  pleadings  of  the  defendant,  with  the  exhibits  annexed 
thereto. 

6.  The  testimony  on  the  part  of  the  libellant,  and  any  exhibits 
not  annexed  to  the  libel. 

7.  The  testimony  on  the  part  of  the  defendant,  and  any  exhibits 
not  annexed  to  his  pleadings. 

8.  Any  order  of  the  court  to  which  exception  was  made. 

9.  Any  report  of  an  assessor  or  assessors,  if  excepted  to,  with 
the  orders  of  the  court  respecting  the  same,  and  the  exceptions  to 
the  report.  If  the  report  was  not  excepted  to,  only  the  fact  that 
a  reference  was  made,  and  so  much  of  the  report  as  shows  what  re- 
sults were  arrived  at  by  the  assessor,  are  to  be  stated. 

10.  The  final  decree. 

'  11.  The  prayer  for  an  appeal  and  the  action  of  the  district  court 
thereon ;  and  no  reasons  of  appeal  shall  be  filed  or  inserted  in  the 
transcript. 

The  following  shall  be  omitted : 

1.  The  continuances. 


590  FEDERAL    PLEADING,    PRACTICE    AND    PKOCEDURE. 

2.  All  motions,  rules  and  orders  not  excepted  to  which  are  merely 
preparatory  for  trial. 

3.  The  commissions  to  take  depositions,  notices  therefor,  their 
captions  and  certificates  of  their  being  sworn  to,  unless  some  excep- 
tion to  a  deposition  in  the  district  court  was  founded  on  some  one 
or  more  of  these ;  in  which  case  so  much  of  either  of  them  as  may 
be  involved  in  the  exception  shall  be  set  out.  In  all  other  cases  it 
shall  be  sufficient  to  give  the  name  of  the  witness,  and  to  copy  the 
interrogatories  and  answers,  and  to  state  the  name  of  the  commis- 
sioner and  the  place  where  and  the  date  when  the  deposition  was 
sworn  to;  and  in  copying  all  depositions  taken  on  interrogatories 
the  answer  shall  be  inserted  immediately  following  the  question. 

2.  Certificate  of  clerk. — The  clerk  of  the  district  court  shall 
page  the  copy  of  the  record  thus  made  up,  and  shall  make  an  index 
thereto,  and  he  shall  certify  the  entire  document,  at  the  end  thereof, 
under  the  seal  of  the  court,  to  be  a  transcript  of  the  record  of  the 
district  court  in  the  cause  named  at  the  beginning  of  the  copy  made 
up  pursuant  to  this  rule;  and  no  other  certificate  of  the  record  shall 
be  needful  or  inserted. 

Rule  53. 

Cross-libel,  security  for  costs  by  respondent. — Whenever 
a  cross-libel  is  filed  upon  any  counter-claim  arising  out  of  the  same 
cause  of  action  for  which  the  original  libel  was  filed,  the  respond- 
ents in  the  cross-libel  shall  give  security,  in  the  usual  amount  and 
form,  to  respond  in  damages  as  claimed  in  said  cross-libel,  unless 
the  court,  on  cause  shown,  shall  otherwise  direct ;  and  all  proceed- 
ings upon  the  original  libel  shall  be  stayed  until  such  security  shall 
be  given. 

Rule  54. 

Libel  or  suit  for  embezzlement  of  master. — When  any  ship 
or  vessel  shall  be  libelled,  or  the  owner  or  owners  thereof  shall  be 
sued  for  any  embezzlement,  loss  or  destruction  by  the  master,  offi- 
cers, mariners,  passengers  or  any  other  person  or  persons,  of  any 
property,  goods  or  merchandise  shipped  or  put  on  board  of  such  ship 
or  vessel,  or  for  any  loss,  damage  or  injury  by  collision,  or  for  any 
act,  matter  or  thing,  loss,  damage  or  forfeiture  done,  occasioned  or 
incurred  without  the  privity  or  knowledge  of  such  owner  or  owners, 


ADMIRALTY   RULES.  591 

and  be  or  they  shall  desire  to  claim  the  benefit  of  limitation  of  lia- 
bility provided  for  in  the  3d  and  4th  sections  of  the  said  act  above 
recited,  the  said  owner  or  owners  shall  and  may  file  a  libel  or  peti- 
tion in  the  proper  district  court  of  the  United  States,  as  hereinafter 
specified,  setting  forth  the  facts  and  circumstances  on  which  such 
limitation  of  liability  is  claimed,  and  praying  proper  relief  in  that 
behalf;  and  thereupon  said  court,  having  caused  due  appraisement 
to  be  had  of  the  amount  or  value  of  the  interest  of  said  owner  or 
owners,  respectively,  in  such  ship  or  vessel,  and  her  freight  for  the 
voyage,  shall  make  an  order  for  the  payment  of  the  same  into  court, 
or  for  the  giving  of  a  stipulation  with  sureties  for  payment  thereof 
into  court,  whenever  the  same  shall  be  ordered  ;  or,  if  the  said  owner 
or  owners  shall  so  elect,  the  said  court  shall,  without  such  appraise- 
ment, make  an  order  for  the  transfer  by  him  or  them  of  his  or  their 
interest  in  such  vessel  and  freight,  to  a  trustee  to  be  appointed  by 
the  court  under  the  4th  section  of  said  act ;  and  upon  compliance 
with  such  order,  the  said  court  shall  issue  a  monition  against  all  per- 
sons claiming  damages  for  any  such  embezzlement,  loss,  destruction, 
damage  or  injury,  citing  them  to  appear  before  the  said  court  and 
make  due  proof  of  their  respective  claims  at  or  before  a  certain 
time  to  be  named  in  said  writ,  not  less  than  three  months  from  the 
issuing  of  the  same ;  and  public  notice  of  such  monition  shall  be 
given  as  in  other  cases,  and  such  further  notice  served  through  the 
post-office,  or  otherwise,  as  the  court,  in  its  discretion,  may  direct; 
and  the  said  court  shall  also,  on  the  application  of  the  said  owner  or 
owners,  make  an  order  to  restrain  the  further  prosecution  of  all  and 
any  suit  or  suits  against  said  owner  or  owners  in  respect  of  any  such 
claim  or  claims. 

Rule  55. 

Proof  of  claims  before  commissioner. —  Proof  of  all  claims 
which  shall  be  presented  in  pursuance  of  said  monition  shall  be  made 
before  a  commissioner  to  be  designated  by  the  court,  subject  to  the 
right  of  any  person  interested  to  question  or  controvert  the  same ; 
and  upon  the  completion  of  said  proofs,  the  commissioner  shall  make 
report  of  the  claims  so  proven,  and  upon  confirmation  of  said  report, 
after  hearing  any  exceptions  thereto,  the  moneys  paid  or  secured  to 
be  paid  into  court  as  aforesaid,  or  the  proceeds  of  said  ship  or  ves- 
sel  and   freight  (after  payment  of  costs  and  expenses),   shall  be 


592  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

divided  pro  rata  amongst  the  several  claimants  in  proportion  to  the 
amount  of  their  respective  claims,  duly  proved  and  confirmed  as 
aforesaid,  saving,  however,  to  all  parties  any  priority  to  which  they 
may  be  legally  entitled. 

Rule  56. 

Who  may  defend. — In  the  proceedings  aforesaid  the  said  owner 
or  owners  shall  be  at  liberty  to  contest  his  or  their  liability,  or  the 
liability  of  said  ship  or  vessel,  for  said  embezzlement,  loss,  destruc- 
tion, damage  or  injury  (independently  of  the  limitation  of  liability 
claimed  under  said  act) ;  provided,  that  in  his  or  their  libel  or  peti- 
tion he  or  they  shall  state  the  facts  and  circumstances  by  reason  of 
which  exemption  from  liability  is  claimed ;  and  any  person  or  per- 
sons claiming  damages  as  aforesaid,  and  who  shall  have  presented 
his' or  their  claim  to  the  commissioner  under  oath,  shall  and  may 
answer  such  libel  or  petition  and  contest  the  right  of  the  owner  or 
owners  of  said  ship  or  vessel,  either  to  an  exemption  from  liability 
or  to  a  limitation  of  liability  under  the  said  act  of  Congress,  or 
both. 

Rule  57. 

Where  libel  or  petition  must  be  filed  ;  jurisdiction,  where 
IT  ATTACHES. — The  Said  libel  or  petition  shall  be  filed  and  the  said 
proceedings  had  in  any  district  court  of  the  United  States  in  which 
said  ship  or  vessel  may  be  libelled  to  answer  for  any  such  embezzle- 
ment, loss,  destruction,  damage  or  injury ;  or  if  the  said  ship  or 
vessel  be  not  libelled,  then  in  the  district  court  for  any  district  in 
which  the  said  owner  or  owners  may  be  sued  in  that  behalf.  If  the 
ship  have  already  been  libelled  and  sold,  the  proceeds  shall  represent 
the  same  for  the  purposes  of  these  rules. 


RULES  OF  THE  COURT  OF  CLAIMS. 

TOOK  EFFECT  JULY  1,  1879. 


Article  I. — Attorneys  and  Counsel. 

Suits,  by  whom  commenced  ;  when  power  of  attorney  to  be 
FILED. — Sec.  1.  Suits  may  be  commenced  by  the  claimant  in  per- 
son, or  through  his  attorney  in  fact,  or  an  attorney  of  this  court. 
If  the  claimant  is  represented  by  an  attorney  in  fact,  the  power  must 
be  filed  with  the  clerk,  and  its  execution  must  be  proved  or  acknowl- 
edged before  an  officer  authorized  to  take  acknowledgments  of  deeds. 

Qualifications  for  admission  as  attorneys. — Sec.  2.  Any 
person  of  good  moral  character,  who  has  been  admitted  to  practice 
in  the  Supreme  Court  of  the  United  States,  or  in  the  highest  court 
of  the  District  of  Columbia,  or  in  the  highest  court  of  any  state  or 
territory,  may  be  admitted,  on  motion  in  open  court,  to  practice  as 
an  attorney  and  counsellor  of  this  court. 

Admission  of  person  as  attorney  in  vacation. — Sec.  3.  An 
attorney-at-law  licensed  to  practice  in  the  courts  of  record  of  any 
state  or  territory  may  file  an  affidavit  made  before  a  person  author- 
ized to  administer  oaths  under  the  laws  of  the  United  States,  show- 
ing when,  where  and  in  what  courts  he  has  been  admitted,  and  that 
he  is  still  entitled  to  practice  therein.  Upon  such  an  affidavit  the 
court,  or  the  Chief  Justice  or  one  of  the  judges  in  vacation,  will  di- 
rect an  order  admitting  such  attorney  to  practice  as  an  attorney  in 
this  court.  But  this  will  not  authorize  the  party  to  appear  in  open 
court  till  there  admitted  as  before  provided. 

Only  one  attorney  of  record  allowed  ;  changes  permitted. 
— Sec.  4.  There  shall  be  but  one  attorney  of  record  for  the  claimant 
in  any  case  at  any  one  time ;  but  a  claimant  may  be  permitted  to 
change  his  attorney,  on  such  conditions  as  the  court  may  prescribe. 
A  firm  of  attorneys  will  be  regarded  as  the  attorney  of  record. 

Attorney  of  record  to  sign  pleadings,  etc. — Sec.  5.  Peti- 
tions, pleadings  and  motions  on  the  part  of  the  claimant  will  be 
38 


594  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

signed  bj  the  attorney  of  record  ;  pleadings  and  motions  on  the 
part  of  the  United  States  by  the  Assistant  Attorney-General. 

Post-office  address  of  claimant  or  attorney  to  be  regis- 
tered.— Sec.  6.  Attorneys  of  record,  or  the  claimant  if  he  appear 
in  person,  will,  on  commencing  or  appearing  in  a  suit,  register  with 
the  clerk  of  the  court  a  post-office  address,  to  which  all  notices  re- 
quired by  these  rules  or  ordered  by  the  court  may  be  addressed. 

Counsel. — Sec.  7.  Counsel,  other  than  the  attorney  of  record, 
may  be  heard  on  either  side  at  the  trial  or  in  any  stage  of  the  pro- 
ceedings, but  shall  not  be  entitled  to  file  pleadings,  give  notices  or 
make  motions. 

Article  II. — The  Petition. 

Filing  of  petition  and  of  twenty-five  printed  copies. — Sec. 
1.  Suits  will  be  commenced  by  petition,  verified  in  the  manner  pro- 
vided by  law,  and  filed  in  the  office  of  the  clerk.  The  clerk  will 
note  the  day  of  the  filing  of  the  petition  thereon.  Within  twenty 
days  thereafter  the  clairnant  will  file  in  the  clerk's  office  twenty-five 
printed  copies  of  such  petition  and  note  of  filing. 

Contents  of  petition. — Sec.  2.  The  petition  must  set  forth — 

1.  The  title  of  the  action,  with  the  full  Christian  and  surnames 
of  all  the  claimants. 

2.  A  plain,  concise  statement  of  the  facts  and  circumstances, 
giving  place  and  date,  free  from  argumentative  and  impertinent 
matter. 

3.  The  prayer,  in  which  the  claimant  must  state  distinctly  the 
amount  for  which  he  demands  judgment,  or  the  relief  for  which  he 
prays. 

Imperfect  petition,  when  may  be  filed. — Sec.  3.  When  the 
claimant  cannot  state  his  case  with  the  requisite  particularity  with- 
out an  examination  of  papers  in  one  of  the  executive  departments, 
and  has  been  unable  to  obtain  a  sufficient  examination  of  such  papers 
on  application,  he  may  file  a  petition  stating  his  claim  as  far  as  is 
in  his  power,  and  specifying  as  definitely  as  he  can  the  papers  he 
requires  in  order  to  enable  him  to  state  his  claim.  The  court  will 
thereupon  call  upon  the  proper  department  for  such  information  or 
■  papers  as  it  may  deem  necessary  ;  and  when  the  same  are  furnished, 
the  petition  may  be  amended,  and  the  amended  petition  shall  be 
printed  and  filed,  and  may  take  the  place  of  the  original  petition. 


RULES  OF  COURT  OF  CLAIMS.  595 

Appointment  of  executor,  etc.,  how  proved. — Sec.  4.  If  the 
claimant  be  an  executor,  administrator,  guardian  or  other  represent- 
ative appointed  by  a  judicial  tribunal,  a  duly-authenticated  copy  of 
the  record  of  the  appointment  must  be  filed  with  the  petition  at  the 
commencement  of  the  action. 

Acts  and  regulations  to  be  specified. — See.  5.  If  the  claim 
be  founded  upon  an  act  of  Congress  or  upon  a  regulation  of  an 
executive  department,  the  act  and  the  section  thereof  upon  which 
the  claimant  relies  must  be  specified,  and  the  particular  regulation 
of  the  department  must  be  stated  in  terms. 

Contracts,  how  stated. — Sec.  6.  If  the  claim  be  founded  upon 
an  express  contract  with  the  United  States,  such  contract  must  be 
set  forth  in  the  petition,  and,  if  it  be  in  writing,  must  be  annexed 
thereto.  If  it  be  founded  upon  an  implied  contract,  the  circum- 
stances upon  which  the  claimant  relies  to  prove  a  contract  must  be 
specified.  If  it  consist  of  several  matters  or  items,  each  must  be 
separately  stated. 

Agent  verifying  petition  must  have  power  op  attorney. — 
Sec.  7.  If  the  petition  be  verified  by  the  attorney  at  law  or  other 
agent  of  the  claimant,  a  power  of  attorney  authorizing  him  to  make 
the  verification  must  be  filed  with  it. 

Amendment  of  petition. — See.  8.  If  a  claimant  desire  to  amend 
his  petition  at  any  time,  he  must  set  forth  in  his  motion  the  specific 
amendments  desired.  If  the  motion  be  allowed,  he  must  within 
twenty  days  thereafter  file  a  copy  of  the  petition,  with  the  amend- 
ments properly  incorporated  therein,  unless  the  court  order  other- 
wise. 

Death  of  claimant. — See.  9.  If  the  claimant  die  pending  the 
suit,  his  death  may  be  suggested  on  the  record,  and  his  proper  rep- 
resentative may,  on  motion,  and  on  filing  a  duly-authenticated  copy 
of  the  record  of  his  appointment  as  executor  or  administrator,  be 
admitted  to  prosecute  the  suit. 

Article  III. — Pleas. 

When  pleas  must  be  filed. — Sec.  1.  Demurrers  to  petitions 
and  general  traverses  thereof  must  be  filed  within  two  months  after 
the  filing  of  the  petition  ;  and  pleas  averring  special  defence,  set-off 
or  counter-claim,  within  one  month  after  the  claimant  places  his 
case  on  the  notice-book. 


596  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

Grounds  of  demurrer. — See.  2.  When  the  Attorney-General 
demurs  to  the  petition,  he  must  set  forth  the  grounds  of  the  de- 
murrer specially ;  but  if  the  ground  be  that  the  petition  does  not 
allege  facts  sufficient  to  constitute  a  cause  of  action,  that  objection 
may  be  stated  generally. 

Replication  to  set-off,  etc. — See.  3.  Within  one  month  after 
the  filing  of  a  set-off  or  counter-claim  by  the  defendants,  the  claim- 
ant must  answer  the  same  by  replication  under  oath ;  in  default 
whereof  the  court  may,  after  ten  days'  notice  by  the  defendants  to 
the  claimant,  order  that  the  set-off  or  counter-claim  be  considered 
as  admitted. 

Plea  of  fraud. — Sec.  4.  When  the  Attorney-General  pleads, 

under  section  1086  of  the  Revised  Statutes,  that  the  claimant  has 

practiced  or  attempted  to  practice  fraud,  he  shall  set  forth  the  facts 

with  sufficient  particularity  to  enable  the  claimant  to  answer  the 

same  in  detail ;  and  the  claimant  shall,  within  two  months  after  the 

filing  of  said  plea,  reply  to  the  same  with  like  particularity,  under 

oath. 

Article  IV. — Motions. 

Motions  to  be  first  heard  at  chambers. — See.  1.  Motions 
will  be  heard  in  the  first  instance  before  a  judge  at  chambers ;  but 
he  may  direct  the  same  to  be  heard  in  open  court.  They  must  come 
to  him  through  the  clerk's  office,  and,  when  acted  upon,  will  be  re- 
turned there  by  him. 

Form  of  motions. — See.  2.  Motions  must  be  in  writing,  signed 
by  the  attorney  of  record,  and  must  give  the  title  and  number  of 
the  case  and  the  term  at  which  they  are  made ;  and  in  no  case  shall 
the  clerk  enter  the  motion  unless  this  rule  be  complied  with. 

When  orders  to  be  entered  of  record. — Sec.  3.  No  order 
will  be  entered  by  the  clerk  unless  it  be  directed  from  the  bench,  or 
be  reduced  to  writing  and  marked  "allowed"  by  the  Chief  Justice 
or  one  of  the  judges. 

Papers  to  be  indorsed  before  filing. — Sec.  4.  The  clerk  will 
not  file  any  paper  unless  it  be  properly  indorsed  with  the  title  and 
number  of  the  suit  and  the  name  of  the  attorney  filing  it. 

Article  V. — Service  of  Notices. 

Service  made  through  clerk's  office  ;  computation  of 
time. — Sec.  1.  Parties  filing  petitions,  pleadings  and  motions,  ex- 


RULES    OF   COURT    OF   CLAIMS.  597 

cept  motions  for  calls  on  departments,  must  at  the  same  time  leave 
with  the  clerk  written  notice  thereof,  addressed  to  the  attorney  of 
the  adverse  party,  with  postage  prepaid,  and  the  clerk  will  mail  the 
same  and  note  the  fact  on  the  general  docket.  All  other  notices  to 
adverse  parties  may  be  served  in  like  manner.  The  clerk's  entry 
on  his  docket  will  be  prima  facie  evidence  of  the  service.  In  the 
computation  of  time  the  day  of  the  service  will  be  excluded,  and 
the  day  on  which  a  party  is  required  to  appear,  or  on  which  an  act 
is  required  to  be  done,  will  be  included. 

Article  VI. — Witnesses. 

Evidence  may  be  taken  before  issue  joined. — Sec.  1.  When 
a  petition  is  filed,  either  party  may  proceed  to  take  testimony,  not- 
withstanding that  issue  of  fact  has  not  been  joined  or  that  issue  on 
demurrer  may  be  pending. 

Testimony  to  be  in  depositions  ;  officers  who  may  take 
DEPOSITIONS. — Sec.  2.  Unless  the  court  order  a  witness  to  testify 
orally  on  the  trial,  the  evidence  of  witnesses  must  be  by  deposition, 
taken  either  before  a  commissioner  of  the  court,  or  a  judge  of  a 
court  of  the  United  States,  or  a  judge  of  a  court  of  record  in  a 
state  or  territory  of  the  United  States,  or  a  commissioner  appointed 
by  a  circuit  court  of  the  United  States,  or  a  notary  public. 

When  depositions  may  be  taken  before  a  judge  of  this 
COURT. — Sec.  3.  When  a  witness  can  be  conveniently  examined  be- 
fore a  judge  of  this  court,  either  party,  at  any  time  prior  to  the  ex- 
amination, may  move  for  an  order  directing  that  his  deposition  be 
so  taken. 

Proceedings  against  witness  in  contempt. — Sec.  4.  If  a  wit- 
ness, having  been  duly  summoned  and  his  fees  tendered  him,  shall 
fail  or  refuse  to  appear  and  testify  before  any  officer  authorized  to 
take  his  testimony,  a  rule  upon  him  will  be  issued  by  the  court,  on 
motion,  to  show  cause  why  a  fine  should  not  be  imposed  upon  him  ; 
and  if  he  fail  to  show  sufficient  cause,  he  shall  be  fined  not  exceed- 
ing one  hundred  dollars. 

Fees  of  witnesses. — Sec.  5.  The  fees  of  witnesses  shall  be  such 
as  are  now  or  may  hereafter  be  prescribed  by  Congress,  and  shall 
be  paid  by  the  party  at  whose  instance  the  witnesses  appear. 

Witness  may  be  examined  in  court. — Sec.  6.  The  court  may 
remand  any  case  to  the  docket  and  order  a  witness  or  a  claimant  to 


598  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

be  produced  before  the  court  or  one  of  the  judges  thereof  for  ex- 
amination. 

Article  VII. — Depositions  on  Written  Interrogatories. 

Depositions  in  foreign  countries. — Sec.  1.  Depositions  ob- 
tained in  foreign  countries  must  be  taken  on  written  interrogatories, 
sent  out  under  a  special  commission  issued  by  the  clerk.  Deposi- 
tions may  be  taken  in  like  manner  within  the  United  States,  by  con- 
sent of  parties,  or  when  authorized  by  the  court  or  by  a  judge  in 
vacation.  The  written  interrogatories  must  be  filed  in  the  clerk's 
office  and  notice  thereof  given  to  the  adverse  party.  Within  fifteen 
days  after  such  notice,  the  adverse  party  may  file  objections  to  any 
of  the  interrogatories,  specifically  stating  the  grounds  of  objection  ; 
and  may  either  file  cross-interrogatories,  or  a  notice  that  he  will 
cross-examine  the  witnesses  orally  ;  which  notice  shall  be  attached 
to  and  sent  out  with  the  special  commission.  If  he  file  cross-inter- 
rogatories, the  other  party  may,  within  fifteen  days  thereafter,  file 
objections  thereto,  specifically  stating  the  grounds  of  objection. 
No  objections  to  an  interrogatory  or  a  cross-interrogatory  will  be 
considered  at  the  trial  unless  taken  before  the  commission  issues. 

Parties  not  to  be  present  at  taking. — Sec.  2.  When  a  dis- 
position is  taken  upon  written  interrogatories  and  written  cross- 
interrogatories,  neither  the  Attorney-General,  nor  the  claimant,  his 
agent  or  attorney,  nor  any  other  person,  shall  be  present  at  the 
examination  of  the  witness ;  which  fact  shall  be  certified  by  the 
officer  taking  the  deposition ;  who  shall,  in  such  cases,  propound 
the  interrogatories  and  cross-interrooratories  to  the  witness  in  their 
order,  and  reduce  his  answers  to  writing  as  nearly  as  practicable  in 
his  precise  words. 

Article  VIII. — Depositions  on  Oral  Examination. 

• 

Notice  for  taking  depositions  on  oral  examination. — Sec. 
1.  The  party  proposing  to  take  depositions  on  oral  examination 
shall  cause  fifteen  days'  notice  to  be  given  thereof  to  the  other 
party.  The  notice  must  be  in  writing,  and  state  the  names  of  the 
witnesses  to  be  examined,  the  day  of  the  month,  the  hour,  and  the 
place  of  taking  the  deposition.  When  the  claimant  proposes  to 
take  a  deposition,  and  the  witness  resides  more  than  five  hundred 
miles  from  Washington,  or  when  the  defendants  propose  to  take  the 


RULES   OF   COURT    OF   CLAIMS.  599 

deposition,  and  the  witness  resides  more  than  five  hundred  miles 
from  the  claimant  or  his  attorney,  one  day's  further  notice  shall  be 
given  for  every  additional  hundred  miles. 

Notice  when  deposition  is  to  be  taken  in  Washington. — 
Sec.  2.  If  the  claimant  proposes  to  take  a  deposition  in  the  city  of 
Washington,  three  days'  notice  shall  be  sufficient ;  and  a  like  notice 
by  the  defendants  shall  be  sufficient  when  the  claimants'  attorney 
resides  in  the  city  of  Washington. 

Questions  and  answers  to  be  recorded. — See.  8.  When  a 
deposition  is  taken  by  oral  examination,  each  question  propounded 
to  the  witness  must  be  recorded,  and  his  answers  must  be  taken 
down,  as  nearly  as  may  be,  in  his  own  words. 

Objections  to  questions. — Sec.  4.  No  general  objection  to  any 
question  shall  be  noticed  by  the  officer;  but  where  an  objection  is 
made  on  sp'ecifically  stated  grounds,  the  officer  shall  record  the 
same  in  direct  connection  with  the  question  objected  to. 

When  witnesses  not  named  in  the  notice  may  be  examined. 
— Sec.  5.  When  depositions  are  taken  on  notice,  as  provided  in 
section  1  of  this  article,  if  both  parties  are  present  or  represented 
at  the  time  and  place  specified  in  the  notice,  either  party  may, 
after  the  examination  of  the  witnesses  produced  under  the  notice, 
be  entitled  to  produce  and  examine  other  witnesses;  but  in  order 
thereto  one  day's  notice  must  be  given  to  the  adverse  party,  or  his 
attorney,  there  present. 

Article  IX. — General  Provisions  as  to  Depositions. 

Of  the  oath;  general  interrogatories. — Sec.  1.  Witnesses 
must  be  sworn  or  affirmed,  before  any  questions  are  put  to  them,  to 
tell  the  truth,  the  whole  truth,  and  nothing  but  the  truth,  relative 
to  the  cause  in  which  they  are  to  testify ;  and  each  witness  shall 
then  state  his  name,  his  occupation,  his  age  if  under  twenty-one 
years,  his  place  of  residence  ;  whether  he  has  any,  and  if  any,  what, 
interest,  direct  or  indirect,  in  the  claim  which  is  the  subject  of  in- 
quiry ;  and  whether,  and  in  what  degree,  he  is  related  to  the  claim- 
ant. At  the  conclusion  of  the  deposition,  the  witness  shall  state 
whether  he  knows  of  any  other  matter  relative  to  the  claim  in  ques- 
tion ;  and  if  he  do,  he  shall  state  it.  The  testimony  of  the  witness 
when  completed  shall  be  read  over  to  him,  and  be  signed  by  him  in 
the  presence  of  the  officer. 


600  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

Sheets  of  depositions,  how  put  together. — Sec.  2.  The 
oflBcer  should  so  connect  the  sheets  of  the  deposition  that  they  can- 
not be  tampered  with,  and  should  return  them  sealed  together.  He 
should  sign,  and  make  the  witness  sign,  each  sheet;  and  generally 
he  should  spare  so  pains  to  return  to  the  court  the  exact  evidence 
he  has  taken.  All  exhibits  should  be  carefully  marked  so  as  to  be 
capable  of  immediate  identification,  and,  when  practicable,  should 
be  attached  to  the  deposition  under  seal. 

Caption  of  deposition. — Sec.  8.  The  officer  must  state,  in  the 
caption  of  the  deposition,  the  cause  in  which  it  was  taken,  the  place 
and  date  of  taking,  the  name  of  the  witness,  the  party  by  whom 
called,  and  the  names  of  the  parties  and  counsel  present.  And  in 
the  body  of  the  deposition  must  also  be  shown  by  whom  the  witness 
was  examined  and  cross-examined. 

What  the  officer's  return  must  show. — Sec.  4.  In  his 
return  the  officer  must  show  that  the  witness  was  properly  sworn  or 
affirmed,  and  that  the  answers  were  taken  down  in  his  presence, 
and  read  over  to  and  signed  by  the  witness. 

Return  of  deposition. — Sec.  5.  The  officer  must  inclose  the 
commission,  depositions  and  exhibits  in  a  packet,  under  his  seal, 
and  direct  the  same  to  the  clerk  of  the  court  at  Washington,  and 
deposit  the  packet  in  the  post-office,  or  in  an  express-office,  or  he 
may  transmit  the  same  by  a  messenger,  whose  name  shall  be  by  him 
indorsed  on  the  packet. 

Officer's  fees  to  be  paid  before  opening  the  deposition. 
— Sec.  6.  If  the  officer's  fees  be  not  paid  at  the  time  of  taking  the 
deposition,  he  should  indorse  on  the  outside  of  the  packet  the  gross 
amount  of  his  fees  and  disbursements,  and  inclose  inside  a  detailed 
statement  thereof.  The  packet  must  not  be  opened  until  the  party 
for  whom  the  depositions  were  taken  deposits  with  the  clerk  the 
amount  indorsed  thereon.  The  clerk  will  then  open  the  packet, 
and  tax  the  officer's  charges  at  the  rates  hereinafter  provided,  and 
will  immediately  transmit  to  him  the  amount  taxed,  returning  the 
overplus,  if  any,  to  the  party.  The  money  will  be  transmitted  by 
draft  or  registered  letter,  and  the  clerk  will  retain  his  vouchers 
therefor. 

Fee  list. — Sec.  7.  The  fees  shall  be  three  dollars  a  day  for  at- 
tending to  take  the  depositions,  and  twenty  cents  a  folio  of  one 
hundred  words  for  taking  and  returning  it  ;  but  this  per  diem  al- 


RULES    OF   COURT    OF    CLAIMS.  601 

lowance  is  limited  to  one  day  for  a  deposition  or  series  of  deposi- 
tions taken  in  the  same  case.  Short-hand  reporters,  acting  as 
special  commissioners,  will  receive,  in  addition  to  these  fees,  ten 
cents  a  folio  for  writing  out  the  deposition  from  their  notes. 

Excessive  charges. — Sec.  8.  Any  permanent  commissioner 
charging  in  excess  of  the  prescribed  fees,  except  under  a  previous 
written  agreement  with  the  parties,  will  be  deemed  guilty  of  im- 
proper and  illegal  conduct,  and  his  commission  will  be  revoked. 

Objections  to  notice,  forms,  etc.;  when  to  be  made. — Sec. 
9.  Objections  to  the  notice,  or  the  form  and  manner  of  taking  or 
returning  the  testimony,  must  be  made  in  writing,  and  filed  within 
one  month  after  notice  of  the  filing  of  the  deposition,  or  they  will 
be  considered  as  waived. 

Article  X. — Evidence  Certified  from  the  Departments. 

Attorney-General  may  give  in  evidence  certified  papers. 
— Sec.  1.  The  Attorney-General  may  offer  in  evidence  properly-cer- 
tified information  and  papers  from  any  executive  department,  with- 
out calling  for  the  same  under  the  provisions  of  section  1076  of 
the  Revised  Statutes.  A  call  for  such  information  and  papers  will 
be  made  at  a  claimant's  request,  on  the  approval  of  a  judge  in 
chambers.  On  the  receipt  of  an  answer  to  the  call,  the  clerk  will 
notify  the  claimant's  counsel  and  the  Attorney-General  by  post. 

Objections  to  papers,  etc.,  avhen  to  be  made. — Sec.  2.  All 
information  or  papers  furnished  by  an  executive  department  in  re- 
sponse to  a  call,  or  through  the  Attorney-General,  is  subject  to 
objection  by  either  party  according  to  the  rules  of  evidence  at  the 
common  law  ;  but  neither  party  will  be  required  to  produce  the 
originals  of  such  papers,  or  to  prove  their  execution,  unless  within 
one  month  after  the  return  is  filed  the  party  objecting  to  such 
papers  enter  of  record  in  the  clerk's  office  a  written  denial  of  their 
genuineness. 

Official  character  of  officer,  when  to  be  proved. — Sec.  3. 
Whenever  it  is  charged  in  a  petition  that  a  contract  has  been  made 
or  other  liability  incurred  through  an  oflScer  or  agent  of  the  United 
States,  other  than  the  head  of  an  executive  department  or  the 
chief  of  a  bureau,  the  claimant  will  be  required  to  prove  that  such 
person  was  an  officer  or  an  agent  of  the  United  States,  by  the  cer- 


602  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

tificate  of  the  proper  executive  department,  or  by  other  legal  and 
sufficient  evidence. 

Official  papers  filed  in  one  cause  may  be  used  in  an- 
other.— Sec.  4.  Any  information  or  papers  certified  from  any 
executive  department,  and  filed  in  any  cause,  may  be  used  and 
applied  in  any  other  pending  cause  to  which  the  same  may  be  ap- 
plicable or  pertinent.  To  entitle  such  information  or  papers  to  be 
so  used,  copies  thereof  must  be  filed  in  such  other  cause  before  the 
same  shall  have  been  placed  on  the  trial  docket. 

Article  XL — Production  of  Original  Papers  by  the 

Claimant. 

Order  for  production  of  papers  by  claimants. — Sec.  1. 
The  court  may,  at  the  instance  of  the  Attorney-General,  order  any 
claimant,  his  agent  or  attorney,  to  produce  in  court,  or  before  any 
officer  authorized  to  take  depositions,  any  letters,  papers,  deeds, 
documents  or  other  writings  in  his  possession  or  subject  to  his 
control,  in  any  way  relating  to  the  claim  sued  upon ;  and  any 
claimant,  his  agent  or  attorney,  who,  after  due  notice,  refuses  to 
produce  such  letters,  papers,  deeds,  documents  or  other  writings, 
when  in  his  power  to  do  so,  shall  be  subject  to  attachment  for 
contempt;  and  if  he  persist  in  such  refusal,  the  court  will  direct 
the  petition  to  be  dismissed. 

Article  XII. — Briefs  and  Requests  for  Findings  of  Fact. 

Close  of  claimant's  proof. — Sec.  1.  The  claimant  may  at  any 
time  give  notice  to  the  Attorn ey-Greneral  that  his  proof  is  closed, 
by  an  entry  to  that  effect  in  the  notice-book  in  the  clerk's  office. 
If  the  Attorney-General  shall  not  within  two  months  thereafter  file 
a  request  for  further  time  to  take  proof,  the  claimant  may,  at  any 
time  after  the  expiration  of  that  period,  have  the  case  placed  on  the 
trial  list. 

Printed  copies  of  claimant's  brief  and  requests  for  find- 
ings to  be  filed. — Sec.  2.  'The  clerk  shall  not  place  a  case  on  the 
trial  list  until  the  claimant  files  in  the  clerk's  office  twenty-five 
printed  copies  of  a  brief  stating  the  points  of  law  on  which  he 
relies,  with  references  to  authorities,  and  twenty -five  printed  copies 
of  the  request  for  facts  required  by  Rule  5  of  the  "  Regulations 


RULES    OF    COURT    OF   CLAIMS.  603 

prescribed  by  the  Supreme  Court  of  the  United  States  under  which 
appeals  may  be  taken  from  the  Court  of  Claims." 

Forms  of  requests  for  findings. — Sec.  3.  Such  request  must 
be  in  the  following  terms :  "  The  claimant,  considering  the  facts 
hereinafter  set  forth  to  he  proven,  and  deeming  them  material  to  the 
due  presentation  of  this  case  in  the  findings  of  fact,  requests  the 
court  to  find  the  same,  as  follows.'^ 

Following  this  request  must  be  a  statement,  in  the  form  of  dis- 
tinct numbered  propositions,  of  the  facts  which  the  party  desires 
to  have  found ;  and  each  proposition  must  be  so  prepared,  with 
respect  to  its  length,  subject  and  phraseology,  that  the  court  may 
conveniently  pass  upon  it ;  and  they  must  be  so  arranged  as  to 
present  a  concise  statement,  in  orderly  and  logical  sequence,  of 
the  Avhole  case,  as  the  party  desires  it  to  appear  in  the  findings  of 
fact.  Subjoined  to  each  proposition  must  be  references  to  the 
pages  of  the  record  containing  the  evidence  relied  on  in  its  support; 
but  no  evidence  must  be  set  out.  Documents  which  may  enter 
into  the  findings  of  fact  need  not  be  presented  in  the  statement, 
but  may  be  referred  to  therein  by  the  pages  of  the  record. 

Defendant's  brief  and  request. — Sec.  4.  The  Attorney- 
General,  within  one  month  after  the  filing  of  the  claimant's  brief 
and  request,  must  file  his  brief  and  request  for  findings  of  fact, 
and  should  indicate  the  requests  on  the  claimant's  part  to  which  no 
objection  is  made.  Such  request  must  be  in  form  and  substance 
like  that  required  of  the  claimant  by  the  next  preceding  section. 

When  Attorney-General  may  put  case  on  the  trial  list. — 
Sec.  5.  If  the  claimant  neglect,  for  two  years  after  filing  his  peti- 
tion, to  close  his  proof  and  give  notice  to  the  Attorney-General,  as 
required  by  section  1  of  this  article,  the  defendants  may  place 
the  case  on  the  trial  list. 

Article  XII. — Trials  and  other  Proceedings  in  Court. 

When  case  to  be  held  ready  for  trial. — Sec.  1.  When  the 
defendant's  brief  and  request  are  filed  the  case  will  be  considered 
as  ready  for  trial,  and,  when  reached,  "a  continuance  will  not  be 
ordered,  except  by  consent  of  parties,  or  for  good  cause  shown. 

Trial  docket. — Sec.  2.  The  trial  docket  will  be  made  up 
monthly.  Cases  will  go  upon  it  in  the  order  in  which  notices  of 
trial  have  been  filed. 


604  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

When  trial  docket  to  be  called. — Sec.  3.  The  peremptory 
call  of  the  trial  docket  will  begin  on  the  Tuesday  after  the  first 
Monday  of  each  month  during  the  term. 

Case  may  be  set  down  for  non-resident  counsel. — Sec.  4. 
Cases  in  which  counsel  reside  at  a  distance  may  be  set  down  once 
during  a  term  for  a  day  certain,  with  the  consent  of  the  Attorney- 
General,  without  regard  to  their  position  upon  the  trial  docket. 

Record  to  be  made  up  in  book  form. — Sec.  5.  No  case  will 
be  heard  for  trial  unless  the  printed  pleadings,  evidence  and  briefs 
be  made  up  in  book  form  together  and  paged  consecutively,  and  a 
copy  thereof  furnished  to  each  member  of  the  court  at  the  hearing ; 
and  all  citations  from  or  references  to  such  pleadings,  evidence  and 
briefs  must  be  by  the  consecutive  p;iging  of  such  book. 

Table  of  contents. — Sec.  6.  When,  in  any  case,  the  record 
shall  be  made  up  in  book  form,  as  required  in  the  next  preceding 
section,  the  chief  clerk  shall  make,  cause  to  be  printed,  and  prefix 
to  each  copy  of  the  record  so  made  up,  a  table  of  the  contents 
thereof,  with  references  to  the  page  where  each  document  and  each 
piece  of  evidence  may  be  found. 

Law  docket. — Sec.  7.  The  law  docket  will  be  taken  up  on  Mon- 
day of  each  week  during  the  term. 

Article  XIV. — Printing. 

Depositions,  how  to  be  printed. — Sec.  1.  The  testimony  and 
briefs  will  be  printed.  In  printing  the  testimony,  the  notices  and 
the  officers'  captions  and  certificates  will  be  omitted ;  but  to  each 
deposition  there  must  be  prefixed  a  title  in  the  following  form : 

Depositio7i  of for  claimant,  [or  defendant,  as  the  case  may 

be]  taken  at ,  on  the dai/  of ,  18     ;  claimant's 

counsel^ ;   defendants'  counsel, . 

Calls  on  departments  to  be  printed. — Sec.  2.  Where  an 
answer  of  a  department  is  printed  as  evidence,  the  call  for  the  same 
must  be  printed  therewith. 

Matter  not  to  be  printed. — Sec.  3.  Before  printing  a  return 
made  to  a  call  on  a  department,  the  chief  clerk  will  withhold  from 
the  copy  for  the  printer,  1st,  all  papers  of  which  copies  have  been 
previously  printed  in  the  record  of  the  case ;  and  for  this  purpose 
he  will  compare  the  two  copies,  and  if  variations  are  found  he  will 
take  the  directions  of  a  judge  in  chambers  before  sending  the  re- 


RULES    OF   COURT    OF   CLAIMS.  605 

turn  to  the  printer ;  2d,  all  certificates  of  authenticity  and  certifi- 
cates of  acknowledgment ;  3d,  all  papers  which  both  parties  agree 
to  omit ;  4th,  all  papers  which  a  judge  in  chambers  orders  to  be 
omitted.  In  each  case  the  chief  clerk  will  make  a  memorandum  of 
the  omission  in  the  copy  for  the  printer,  verified  by  his  initials. 

Objections  to  printing. — Sec.  4.  If  the  claimant  objects  to 
printing  information  or  papers  so  returned,  and  the  Attorney-Gen- 
eral requests  to  have  the  same  printed,  the  clerk  will  note  a  mem- 
orandum of  such  request  in  the  copy  for  the  printer,  with  his 
initials  attached ;  and  when  such  information  or  papers  are  printed, 
the  same  will  be  regarded  as  evidence  oifered  on  the  part  of  the 
defence.  All  information  and  papers  transmitted  from  a  depart- 
ment in  reply  to  a  claimant's  call,  and  not  thus  objected  to  by  him 
within  ten  days  after  return  of  the  call,  will  be  regarded  as  evidence 
offered  by  the  claimant. 

Type  and  size  of  page. — Sec.  5.  The  printed  papers  required 
by  these  rules  must  be  in  long  primer  type  and  in  royal  octavo 
pages,  and  the  style  and  number  of  the  case  must  be  prefixed  to  all 
piinted  papers  and  to  records  of  evidence.  A  table  of  contents, 
with  page  references,  must  also  be  prefixed. 

Depositions,  etc.,  not  to  be  taken  from  clerk's  office. — 
Sec.  6.  No  deposition,  return  or  record  on  file  shall  be  taken  from 
the  custody  of  the  clerk  by  a  claimant  or  his  attorney,  but  either 
may  attend  at  the  clerk's  olfice,  and  prepare  his  evidence  for  the 
press  in  the  form  and  manner  before  prescribed.  When  the  evi- 
dence is  complete  and  ready  for  the  printer,  the  chief  clerk  will 
have  it  printed  at  the  Public  Printing  Office. 

Article  XV. — Limitation. 

When  petition  may  be  dismissed  on  bar  of  six  years. — 
Sec.  1.  If  it  appear  on  the  face  of  the  petition  that  the  claim  first 
accrued  more  than  six  years  before  the  petition  was  filed,  the  claim- 
ant must  aver  therein  the  existence  and  period  of  duration  of  some 
disability,  recognized  by  law,  which  prevented  his  filing  his  petition 
within  that  time ;  in  default  whereof,  it  will  be  considered  that  no 
such  disability  existed,  and  the  petition  may  be  dismissed  on  motion. 

When  petition  may  be  dismissed  on  bar  of  three  years. — 
Sec.  2.  If  the  claimant,  in  avoidance  of  the  bar  of  limitation,  aver 
in  his   petition  the  existence  and  duration  of  any  such  disability. 


606  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

and  it  thereby  appears  that,  after  the  disability  ended,  more  than 
three  years  had  elapsed  before  the  petition  was  filed,  the  petition 
may  be  dismissed  on  motion. 

If  petition  does  not  show  when  claim  accrued,  it  must  be 
MADE  CERTAIN. — See.  3.  If  upon  the  face  of  the  petition  it  does 
not  appear  when  the  claim  first  accrued,  the  court  may  require  the 
claimant  to  make  the  petition  definite  and  certain  in  that  regard, 
and  in  default  thereof  may  dismiss  the  suit. 

Averments  as  to  time  claim  accrued  put  in  issue  by  gen- 
eral TRAVERSE. — Sec.  4.  Averments  in  regard  to  the  time  when  a 
claim  first  accrued,  or  in  regard  to  an  alleged  disability  of  the  claim- 
ant, will  be  held  to  be  put  in  issue  by  the  defendants'  general 
traverse. 

Article  XVI. — Discontinuance. 

No  discontinuance  when  fraud  or  set-off  is  pleaded. — 
See.  1.  Where  fraud  or  set-oiF  is  pleaded,  the  claimant  shall  not, 
without  leave  of  the  court,  discontinue  his  suit.  In  other  cases  he 
may  do  so,  either  in  open  court,  or,  with  the  approval  of  a  judge, 
in  vacation. 

Article  XVII. — New  Trial. 

New  trial  ;  when  not  to  be  granted. — Sec.  1.  A  new  trial 
will  not  be  granted  where,  upon  the  whole  case,  justice  has  been 
done  between  the  parties  and  the  judgment  is  substantially  right, 
although  there  may  have  been  some  mistakes  committed  at  the  trial. 

Grounds  of  motion  by  claimant  for  new  trial. — Sec.  2.  A 
motion  by  a  claimant  for  a  new  trial  may  be  founded  upon  one  or 
more  of  the  following  grounds  :  1st.  Error  of  fact ;  2d.  Error  of 
law ;  and  3d.  Newly-discovered  evidence.  It  must  be  made  at  the 
term  in  which  the  judgment  is  rendered,  and  before  the  commence- 
ment of  the  long  vacation. 

Motion  founded  on  error  of  fact  ;  what  to  specify. — Sec. 

3.  A  motion  founded  upon  an  error  of  fact  must  specify  with 
minuteness  the  fact  or  facts  which  are  regarded  as  erroneously 
found  or  erroneously  omitted  to  be  found  by  the  court,  with  full 
reference  to  the  evidence  which  is  relied  on  to  support  the  motion. 

Motion  founded  on  error  of  law  ;  what  to  specify. — Sec. 

4.  A  motion  founded  upon   error  of  law  must  specify  with  like 


RULES    OF   COURT   OF   CLAIMS.  607 

minuteness  the  points  upon  ■which  the  court  is  supposed  to  have 
erred,  with  references  to  the  authorities  relied  upon  to  support  the 
motion. 

Motion  founded  on  newly-discovered  evidence. — Sec.  5.  A 
motion  upon  the  ground  of  newly-discovered  evidence  will  not  be 
entertained  unless  it  appear  that  the  newly-discovered  evidence 
came  to  the  knowledge  of  the  claimant  or  his  attorney  after  the 
trial  and  before  the  motion  was  made ;  that  it  was  not  for  want  of 
due  diligence  that  it  did  not  sooner  come  to  his  knowledge;  that  it 
is  so  material  that  it  would  probably  produce  a  different  judgment 
if  the  new  trial  were  granted;  and  that  it  is  not  cumulative.  Such 
motion  must  be  accompanied  by  the  affidavit  of  the  claimant  or  his 
attorney  of  record,  setting  forth — 

1st.  The  facts  in  detail  which  the  claimant  expects  to  be  able  to 
prove,  and  whether  the  same  are  to  be  proved  by  witnesses  or  by 
documentary  evidence. 

2d.  The  name,  occupation  and  residence  of  each  and  every  wit- 
ness whom  it  is  proposed  to  call  to  prove  said  facts. 

3d.  That  the  said  facts  were  unknown  to  either  the  claimant  or 
his  attorney  of  record,  and,  if  other  counsel  was  employed  at  the 
trial,  were  unknown  to  such  counsel  until  after  the  close  of  the 
trial. 

4th.  The  reasons  why  the  claimant  and  his  attorney  of  record 
and  his  said  counsel  could  not  have  discovered  said  evidence  before 
the  trial,  if  due  diligence  had  been  used. 

When  argument  to  be  ordered. — Sec.  6.  If  the  court  desires 
to  hear  argument  upon  a  motion  by  a  claimant  for  a  new  trial,  the 
motion  will  be  ordered  to  the  law  docket ;  otherwise  decision  will 
be  announced  from  the  bench  without  hearing. 

Article  XVIIL — Appeals. 

Application  for  appeal;  how  made. — Sec.  1.  Application  for 
appeal  to  the  Supreme  Court  of  the  United  States  from  any  judg- 
ment or  decree  of  this  court  must  be  in  writing,  and  signed  by  the 
claimant  or  his  attorney  of  record,  if  the  appeal  be  on  his  behalf; 
or,  if  taken  by  the  United  States,  it  must  be  signed  by  the  Attor- 
ney-General or  his  assistant. 

To  BE  filed  in  clerk's  office,  when. — Sec.  2.  Such  applica- 
tion, if  made  when  the  court  is  not  in  session,  must  be  filed  with 


608  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

the  clerk,  and  the  date  of  filing  the  same  must  be  indorsed  upon  it 
g,nd  noted  upon  the  general  docket. 

Article  XIX. — Clerk's  Office. 

Hours  of  clerk's  office. — See.  1.  During  term  time  the 
clerk's  ofiice  must  be  kept  open  every  day,  except  Sundays  and 
holidays,  from  9|  A.  M.  to  4  P.  M.,  or  to  such  later  hour  as  the  court 
may  be  in  session  or  in  conference.  During  the  Christmas  holidays, 
the  office  may  be  closed  at  1  p.  m.,  and  in  vacation  at  3  P.  M. 

Attendance  of  clerks. — See.  2.  When  the  court  is  in  session, 
both  the  chief  clerk  and  the  assistant  clerk  will  be  at  the  office 
during  office  hours.  In  vacation  they  may  arrange  their  hours  to 
suit  each  other  and  the  public  business. 

Duties  of  chief  clerk. — See.  3.  The  chief  clerk  will  have 
charge  of  the  journal  of  the  court,  of  the  law  and  trial  dockets,  of 
the  printing,  and  of  the  preparation  of  the  tables  of  contents  of 
the  records  of  each  case  ;  and  he  will  also  prepare  the  annual  return 
to  Congress. 

Duties  of  assistant  clerk. — Sec.  4.  The  assistant  clerk  will 
attend  to  office  business,  and  will  have  charge  of  the  general  docket, 
the  notice  book,  and  the  giving  of  notices  under  these  rules. 

Provision  for  absence, — See.  5,  In  the  absence  of  the  chief 
or  the  assistant  clerk,  his  duties  will  be  temporarily  performed  by 
the  other. 

Article  XX. — Withdrawal  of  Papers. 

Withdrawal  of  papers. — See.  1.  Papers  shall  not  be  with- 
drawn from  the  files  except  on  motion  for  good  cause  shown,  and 
upon  such  terms  as  the  court  or  a  judge  may  order. 

Article  XXI. — Extension  of  Time. 

Extension  of  time. — See.  1.  The  time  named  in  these  rules 
for  the  doing  of  any  act  may  be  extended  on  motion  for  good  cause 
shown. 


EULES    OF    COURT    OF   CLAIMS.    '  609 


Regulations  prescribed  by  the  Supreme  Court  of  the 
United  States  under  which  appeals  may  be  taken  from 
the  Court  of  Claims. 

Rule  1. 

Record  on  which  appeals  are  heard  in  Supreme  Court. — 
In  all  cases  hereafter  decided  in  the  Court  of  Claims,  in  which,  by 
the  act  of  Congress,  such  appeals  are  allowable,  they  shall  be 
heard  in  the  Supreme  Court  upon  the  following  record,  and  none 
other : 

Transcript  of  pleadings,  etc. — 1.  A  transcript  of  the  plead- 
ings in  the  case,  of  the  final  judgment  or  decree  of  the  court,  and 
of  such  interlocutory  orders,  rulings,  judgments  and  decrees  as 
may  be  necessary  to  a  proper  review  of  the  case. 

Finding  of  fact  and  conclusions  of  law. — 2.  A  finding  by 
the  Court  of  Claims  of  the  facts  in  the  case,  established  by  the 
evidence,  in  the  nature  of  a  special  verdict,  but  not  the  evidence 
establishing  them ;  and  a  separate  statement  of  the  conclusions 
*  of  law  upon  said  facts  on  which  the  court  founds  its  judgment  or 
decree.  The  finding  of  facts  and  conclusions  of  law  to  be  certified 
to  this  court  as  part  of  the  record. 

Rule  2. 
[Now  obsolete.] 

Rule   3. 

Application  for  appeals  stops  limitation  from  running; 
TO  BE  ALLOWED  BY  THE  COURT  OR  Chief  Justice. — In  all  cases 
an  order  of  allowance  of  appeal  by  the  Court  of  Claims,  or  the 
Chief  Justice  thereof  in  vacation,  is  essential,  and  the  limitation 
of  time  for  granting  such  appeal  shall  cease  to  run  from  the  time 
an  application  is  made  for  the  allowance  of  appeal. 

Rule  4. 

Findings  of  fact  and  conclusions  of  law  to  be  filed  by 
court. — In  all    cases    in  which    either  party  is    entitled   to    ap- 
peal to  the  Supreme  Court,  the  Court  of  Claims  shall  make  and 
file  th'eir  findings   of  facts   and  their  conclusions   of  law  therein 
39 


610  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

in  open  court,  before  or  at  the  time   they  enter  judgment   in  the 
case. 

Rule   5. 

Parties  before  trial  to  submit  request  to  find  facts. — In 
every  such  case,  each  party,  at  such  time  before  trial,  and  in  such 
form,  as  the  court  may  prescribe,  shall  submit  to  it  a  request  to 
find  all  the  facts  which  the  party  considers  proven  and  deems  ma- 
terial to  the  due  presentation  of  the  case  in  the  finding  of  facts. 


FORMS. 


CAPTION  AND  TITLE  OF  SUIT  AND  JURISDICTIONAL 
CLAUSE  IN  SUITS  AT  LAW  OR  IN  EQUITY. 

Form  No.  1. 

Caption  and  title  of  cause. 

Circuit  [or  district]  court  of  the  United  States,  for  the 
district  of  .     Of  term  in  the  year 

A.  B.      ^ 

V.  V  At  law. 

C.  D.      j  [Or  in  equity,  or  in  admiralty.] 


Form  No.  2. 


Jurisdictional  clause  in  a  suit  by  a  citizen  of  the  United  States 
against  an  alien. 

A.  B.,  who  is  a  citizen  of  the  state  of  ,  sues  [or  com- 

plains of]  C.  D.,  who  is  a  subject  [or  citizen]  of  ,  and  an 

alien,  for  that,  etc. 


Form  No.  3. 


Jurisdictional  clause  in  a  suit  by  an  alien  against  a  citizen  of  the 

United  States. 

A.  B.,  who  is  a  subject  of  the  king  [or  emperor]  of  , 

and  an  alien,  sues  [or  complains  of]  C.  D.,  who  is  a  citizen  of  the 
state  of  ,  for  that,  etc. 


612         federal  pleading,  practice  and  procedure. 

Form  No.  4. 

Jurisdictional   clause  in   a  suit  by  a  citizen  of   one  state   against  a 
citizen  of  another. 

A.  B.,  who  is  a  citizen  of  the  state  of  ,  sues  [or  com- 

plains of]  C.  D.,  who  is  a  citizen  of  the  state  of  ,  for  that, 

etc. 


Form  No.  5. 

Jurisdictional  clause  in  suits  by  a  corporation. 

The  [giving  the  name  of  the  corporation]  citizen  of  the  state  of 
,  and  incorporated  by  the  laws  of  said  state,  and  having 
its  principal  place  of  business  therein,  sues  [or  complains  of]  C.  D., 
a  citizen  of  the  state  of  ,  etc. 


Form  No.  6. 

Jurisdictional  clause  in  suits  against  a  corporation. 

A.  B.,  a  citizen  of  the  state  of  ,  sues  [or  complains  of] 

,  a  corporation,  organized  and  constituted  by  that  name, 
by  the  laws  of  the  state  of  ,  and-  having  their  principal 

place  of  business  in  said  state,  defendant,  for  that,  etc. 


Form  No.  7. 

Commencement  of  declaration  by  the  United  States. 

[Caption  and  title  of  cause  as  in  Form  Xo.  1.] 

The  United   States  by  ,  their  attorney  for  the  district 

of  ,  sue,  etc. 

Form  No.  8. 

Caption  and  title  of  a  cause  in  the  Supreme  Court. 

In  the  Supreme  Court  of  the  United  States. 
A.  B.,  complainant,  ^ 

V.  y  In  equity. 

C.  D.,  defendant,     J  [Or  at  law.] 


forms  of  declarations.  613 

Form  No.  9. 

Jurisdictional  clause  in  the  Supreme  Court  in  case  of  a  controversy 
bet-w^een  states  in  reference  to  boundary. 

[Caption  and  title  of  cause  as  in  Form  No.  8.] 

The  state  of  ,  by  A.  B.,  her  agent  and  attorney,  duly 

appointed  and  commissioned  in  pursuance  of  law,  complains  and 
states  that  a  controversy  has  arisen  between  said  state  and  the 
state  of  respecting   the    boundary  between   said  states ; 

and  the  said  state  of  complains,  etc. 


FORMS  OF  DECLARATIONS. 

Form  No.  10. 

Declaration  on  common  counts  in  assumpsit. 
[Title  of  cause  and  jurisdictional  clause  as  in  No.  1  and  No.  2,  3  or  4.] 

For  that  the  defendant  is  indebted  to  the  plaintiff  for  goods  sold 
and  delivered  by  the  plaintiff  to  the  defendant,  on  the  of 

,18  .  [Or  for  work  and  labor  done  and  materials  pro- 
vided by  the  plaintiff  for  the  defendant  at  his  request;  or  for  money 
lent  by  the  plaintiff  to  the  defendant ;  or  for  money  paid  by  the 
plaintiff  to  the  defendant  at  his  request ;  or  for  money  received  by 
the  defendant  for  the  use  of  the  plaintiff;  or  for  money  found 
due  from  the  defendant  to  the  plaintiff  on  accounts  stated  be- 
tween them]  and  for  which  the  defendant  promised  to  pay  the 
plaintiff  the  sum   of  $  ,  but  which  he   has  wholly  failed  and 

neglected  to  do.     "Wherefore  the  plaintiff  claims  judgment  against 
the  defendant  for  the  sum  of  $  ,  besides  costs. 


Form  No.  11. 

Declaration  by  the  payee  against  the  maker  of  a  promissory  note. 

[Caption  and  title  of  cause  as  in  No.  1,  and  jurisdictional  clause  as  in  No. 

2,  3  or  4.] 

For  that  whereas  the  said  C.  D.,  defendant,  on  the  day 

of  ,  18     ,  made   his   certain   note   in  Avriting,  commonly 

called  a  promissory  note,  his  own  proper  hand  being  thereto  sub- 


614  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

scribed,  bearing  date  the  day  and  year  last  aforesaid,  and  then  and 
there  delivered  the  said  note  to  A.  B.,  the  plaintiff,  by  which  said 
note  the  defendant  then  and  there  promised  to  pay  to  the  plaintiff, 
or  his  order,  6  months  after  the  date  thereof,  the  sum  of  $  , 

for  value  received.^  Nevertheless  the  said  defendant,  not  regarding 
his  said  promise  and  undertaking,  hath  not  paid  the  said  sum  of 
money,  or  any  part  thereof,  to  the  said  plaintiff,  although  often  re- 
quested so  to  do ;  but  the  said  defendant  to  pay  him  the  same  hath 
hitherto  wholly  neglected  and  refused  and  still  doth  neglect  and 
refuse  to  the  plaintiff  of  ,  and  therefore  he  brings  suit,  etc. 

G.  F.,  Attorney  for  plaintiff. 


Form  No.  12. 

Declaration  by  an  endorsee  of  a  promissory  note,  against  the  maker. 
[Caption,  title  and  jurisdictional  clause  same  as  in  last  number.] 

For  that  whereas  the  said  C.  D.  on  the  day  of  , 

18     ,  at  ,  made  his   certain   note  in   writing,   commonly 

called  a  promissory  note,  his  own  proper  hand  being  thereto  sub- 
scribed, bearing  date  the  day  and  year  last  aforesaid,  and  then  and 
there  delivered  the  said  note  to  one  E.  F.,  and  by  which  said  note 
he,  the  said  C.  D.,  then  and  there  promised  to  pay,  one  year  after 
the  date  thereof,  to  the  said  E.  F.  or  order,  the  sum  of  $ 
for  value  received;  and  the  said  E.  F.,  to  whom  or  whose  order  the 
payment  of  the  said  money,  in  the  said  note  specified,  was  by  the 
said  note  to  be  made,  after  the  making  of  said  note  and  before  the 
payment  of  the  said  money  in  said  note  specified,  to  wit,  on  the 
day  of  ,   18     ,    at  ,  indorsed  the  said 

note,  his  own  proper  hand  being  to  such  indorsement  subscribed, 
by  which  said  indorsement  he,  the  said  E.  F.,  then  and  there  or- 
dered and  appointed  the  said  sum  of  money  in  the  said  note  speci- 
fied to  be  paid  to  the  said  A.  B.,  plaintiff,  and  then  and  there 
delivered  the  said  note,  so  endorsed  as  aforesaid,  to  the  said  A.  B. ; 
by  means  whereof  the  said  defendant  then  and  there  became  liable 
to  pay  to  the  said  plaintiff  the  said  sum  of  money  in  the  said  note 
specified,  according  to  the  tenor  and  effect  thereof.  Nevertheless, 
the  said  defendant,  not  regarding  his  said  promise  and  undertaking, 

^  See  next  form. 


FORMS    OF   DECLARATIONS.  615 

hath  not  paid  the  said  sum  of  money,  or  any  part  thereof,  to  the 
said  plaintiff,  although  often  requested  so  to  do,  but  the  said  defend- 
ant to  pay  him  the  same  hath  hitherto  wholly  neglected  and  refused 
and  still  doth  neglect  and  refuse,  to  the  damage  of  the  said  plaintiff 
of  $  ,  and  therefore  he  brings  suit. 

G.  H.,  Attorney  for  plaintiff. 


Form  No.  13. 

Declaration  in  debt  for  a  penalty. 

[Caption,  title  and  jurisdictional  clause  as  in  last  form.] 

For   that  whereas,    to  wit,  on   the  day  of  , 

18  ,  and  since  the  enactment  and  approval  of  an  act  of  the  Congress 
of  the  United  States,  entitled  [give  the  title],  the  said  defendant 
[here  state  the  facts  constituting  the  offence],  contrary  to  the  form  of 
the  statute  of  the  United  States  aforesaid,  whereby  the  said  defendant 
forfeited  and  became  liable  to  pay  for  the  said  offence,  to  the  plain- 
tiff, being  the  party  aggrieved  thereby,  the  sum  of  dollars 
penalty  as  aforesaid,  and  thereby,  and  by  force  of  the  statute  afore- 
said, a  right  of  action  hath  accrued  to  the  plaintiff  to  recover  of 
and  from  the  defendant  the  said  sum  of  dollars  so  forfeited 
as  aforesaid. 

Form  No.  14. 

Declaration  in  debt  by  the  United  States  for  a  penalty. 

[Caption  and  title  as  in  Forms  No.  1  and  No.  7.] 

The  United  States  of  America,  plaintiff,  by  G.  F.,  their  district 
attorney,  complain  of  C.  D.,  the  defendant — 

For  that  heretofore,  to  wit,  on  the  day  of  ,  A.  D. 

18     ,  at  ,  in  the  county  of  ,  in  the  district 

of  ,  and  within  the  jurisdiction  of  this  court,  the  defendant 

made,  executed  and  delivered  to  one  his  draft  on  the  First 

National  Bank  of  ,  a  bank  constituted  under  the  laws  of 

the  United  States,  for  the  sum  of  five  hundred  dollars,  payable  on 
demand  to  the  said  or  order,  without  having  the  same  duly 

stamped,  or  having  thereon  an  adhesive  stamp  for  denoting  the 
duty  chargeable  thereon  by  law,  to  wit,  a  stamp  of  two  cents,  or  any 
stamp,  contrary  to   and  with  intent  to  evade  the  provisions  of  the 


1 


616  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

Statutes  of  the  United  States  in  such  case  made  and  provided. 
Whereby,  and  by  virtue  of  section  3422  of  the  Revised  Statutes  of 
the  United  States,  an  action  hath  accrued  to  the  United  States, 
and  the  said  defendant  has  forfeited  and  become  liable  to  pay  the 
sum  of  fifty  dollars. 

Wherefore  the  plaintiff  demands  judgment  herein  against  the 
said  for  the  sum  of  fifty  dollars  besides  costs. 

G.  F.,  District  Attorney  for  the  district. 


Form  No.  15. 

Declaration  in  debt,  on  a  bond. 

[Title  as  in  Form  No.  1,  with  jurisdictional  clause.] 

For  that  whereas  the  said  defendants  heretofore,  to  wit,  on  the 
day  of  ,   18     ,  at  the  of  ,  in 

the  district  aforesaid,  by  their  certain  bond  and  writing  obligatory, 
bearing  date  the  day  and  year  last  aforesaid,  sealed  with  the  seals 
of  the  said  defendants,  which  said  bond  and  writing  obligatory  the 
said  plaintiff  now  brings  here  into  court  and  shows  to  the  said  court, 
acknowledged  themselves  to  be  firmly  bound  unto  the  said  plaintiff 
in  the  full   and  just  sum   of  dollars,  for  the  payment  of 

which  the  said  defendants  bound  themselves,  their  heirs,  executors 
and  administrators,  jointly  and  severally,  firmly  by  these  presents. 

The  plaintiff  further  says  that  the  said  bond  and  writing  oblig- 
atory was  and  is  subject  to  a  certain  condition  thereunder  written, 
whereby,  after  reciting  to  the  effect  following,  to  wit,  that  [here  set 
out  the  recitals  of  the  bond]  it  is  provided  that  [here  set  out  the 
condition  of  the  bond]  then  the  said  obligation  to  be  void,  other- 
wise to  remain  in  full  force  and  virtue,  as  by  the  said  bond  and 
writing  obligatory  will  more  fully  appear. 

And  the  said  plaintiff,  for  assigning  a  breach  of  the  condition  of 

said  bond  and  writing  obligatory,  in  fact  says  that  after  the  making 

of  said  bond  and  writing  obligatory,  to  wit,  on  the  day  of 

,18     ,  at  aforesaid,   the  said  defendants   [here 

state  the  breach]. 

By  means  of  which,  said  several  premises  the  said  writing  oblig- 
atory became  forfeited,  and  the  said  plaintiff  has  sustained  damages 
to  a  large  amount,  to  wit,  to  the  amount  of  dollars,  and 


FORMS   OF   DECLARATIONS.  617 

thereby  an  action  hath  accrued  to  the  said  plaintiff  to  demand  and 
have  of  and  from  said  defendants  the  sum  of  dollars,  where- 

fore he  brinors  this  suit,  etc. 


Form  No.  16. 

Declaration  for  damages  for  violating  a  patent  right. 

[Caption  and  title  as  in  Form  No.  1.] 

For  that  whereas  the  said  plaintiff  was  the  original  inventor  of 
a  certain  new  and  useful  improvement,  in  the  letters  patent  herein- 
after mentioned  and  fully  described,  the  same  being  a  certain  im- 
provement in  a  steam  engine,  and  in  the  mode  of  propelling  there- 
with either  vessels  on  the  water  or  carriages  on  the  land,  which  was 
not  known  or  used  before  his  said  invention,  and  which  was  not,  at 
the  time  of  his  application  for  a  patent,  as  hereinafter  mentioned, 
in  public  use  with  his  consent  or  allowance.  And  the  said  plaintiff 
being  so  as  aforesaid  the  inventor  thereof,  and  being  also  a  citizen 
of  the  United  States,  on  the  eighth  day  of  March,  one  thousand 
eight  hundred  and  thirty-four,  upon  due  application  therefor,  did 
obtain  certain  letters  patent  therefor,  in  due  form  of  law,  under  the 
seal  of  the  United  States,  signed  by  Andrew  Jackson,  then  Presi- 
dent, and  countersigned  by  Louis  McLane,  then  Secretary  of  State, 
bearing  date  the  day  and  year  aforesaid,  whereby  then  was  secured 
to  him,  the  said  plaintiff,  his  heirs,  executors,  administrators  or 
assigns,  for  the  term  of  fourteen  years  from  and  after  the*  date  of 
the  said  patent,  the  exclusive  right  and  liberty  of  making,  using 
and  vending  to  others  to  be  used  the  said  improvement,  as  by  the 
said  letters  patent  in  court  to  be  produced  will  fully  appear. 

And  the  said  plaintiff  further  says  that  the  said  defendant,  well 
knowing  the  said  several  premises,  but  contriving  and  wrongfully 
and  injuriously  intending  to  injure  the  plaintiff,  and  deprive  him  of 
the  profits,  benefits  and  advantages  which  he  might  and  otherwise 
would  have  derived  and  acquired  from  the  making,  using  and  vend- 
ing of  the  said  invention  or  improvement,  after  the  making  and 
issuing  of  the  said  letters  patent,  and  within  the  term  of  fourteen 
years  in  said  letters  patent  mentioned,  to  wit,  on  the  first  day  of 
January,  eighteen  hundred  and  forty,  and  on  divers  other  days  and 
times  between  that  time  and  the  commencment  of  this  suit,  at  the 
city  of  New  York,  and  within  the  southern  district  of  New  York, 


C18  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

wrongfully  and  unjustly,  without  the  leave  or  license  and  against 
the  will  of  the  plaintiff,  made  and  sold  divers,  to  wit,  ten  machines 
for  propelling  boats,  in  imitation  of  the  said  invention  and  improve- 
ment, or  a  part  of  the  said  invention  or  improvement,  to  the  benefit, 
use  and  enjoyment  whereof  the  said  plaintiff  was  and  is  entitled  as 
aforesaid,  in  violation  and  infringement  of  the  said  letters  patent, 
and  of  the  exclusive  right  and  privilege  to  which  the  plaintiff  was 
and  is  entitled  as  aforesaid,  and  contrary  to  the  form  of  the 
statutes  of  the  United  States  in  such  case  made  and  provided. 

And  the  said  plaintiff  further  says  that  the  said  defendant,  well 
knowing  the  said  several  premises,  but  further  contriving  and  in- 
tending as  aforesaid,  after  the  obtaining  of  the  said  letters  patent  by 
the  said  plaintiff  as  aforesaid,  and  within  the  said  term  of  fourteen 
years,  to  wit,  on  the  said  first  day  of  January,  eighteen  hundred  and 
forty,  and  at  divers  other  times  between  that  day  and  the  commence- 
ment of  this  suit,  within  the  southern  district  of  New  York  afore- 
said, wrongfully  and  unjustly,  without  the  leave  or  license  and 
against  the  will  of  the  plaintiff,  did  make  and  sell  divers,  to  wit, 
ten  improved  machines  for  propelling  boats  or  vessels  upon  the 
water,  constructed  in  a  similar  form  and  acting  upon  the  same  prin- 
ciple as  the  said  machine  or  improvement,  to  the  benefit,  use  and 
enjoyment  whereof  the  said  plaintiff  was  and  is  entitled  by  his 
said  letters  patent,  as  aforesaid,  in  violation  and  infringement  of 
the  exclusive  right  so  secured  to  the  said  plaintiff  by  the  said  letters 
patent  as  aforesaid,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

And  the  said  plaintiff  further  says  that  the  said  defendant,  well 
knowing  the  said  several  premises,  but  contriving  and  intending  as 
aforesaid,  after  the  obtaining  of  the  said  letters  patent  by  the  said 
plaintiff  as  aforesaid,  and  within  the  said  term  of  fourteen  years,  to 
wit,  on  the  said  first  day  of  January,  eighteen  hundred  and  forty,  and 
at  divers  other  times  between  that  day  and  the  commencement  of 
this  suit,  in  the  southern  district  of  New  York  aforesaid,  wrongfully 
and  unjustly,  and  without  the  consent  or  allowance  and  against  the 
will  of  the  plaintiff,  did  imitate  in  part  and  make  a  certain  addi- 
tion to  the  invention  or  improvement,  to  the  benefit,  use  and 
enjoyment  whereof  the  plaintiff  was  and  is  entitled  as  aforesaid, 
in  breach  of  the  said  letters  patent,  and  in  violation  and  infringe- 
ment of  the  exclusive  right  and  privilege  so  secured   to  the  said 


FORMS   OF   DECLARATIONS.  619 

plaintiff  as  aforesaid,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

Bj  means  of  the  committing  of  which  said  several  grievances  hy 
the  said  defendant  as  aforesaid,  the  said  plaintiff  is  greatly  injured, 
and  has  lost  and  been  deprived  of  divers  great  gains  and  profits 
which  he  might  and  otherwise  would  have  derived  from  the  said  in- 
vention and  improvement  in  the  said  letters  patent  described  and  set 
forth,  and  in  respect  whereof  he  was  and  is  entitled  to  such  privi- 
lege as  aforesaid,  and  was  and  is  otherwise  damnified  to  the  damage 
of  the  said  plaintiff"  of  ten  thousand  dollars,  and  therefore,  etc. 


Form  No.  17. 

Declaration  on  the  case. 

[Caption  and  title  as  in  Form  No.  1,  with  proper  jurisdictional  clause.] 

A.  B.,  being  a  citizen  of  the  United  States  of  America,  and  a 
resident  of  ,  plaintiff  in  this  suit,  by  G.  F.,  his  attorney, 

complains  of  C.  D.,  defendant     ,  of  the  said  district,  of  a 

plea  of  trespass  on  the  case.  The  plaintiff  states  that  J.  L.  and 
L.  H.,  of  the  town  of  ,  in  the  county  of  and  state 

of  ,  and  in   said  district,  before  and  at  the  time  of  the 

making  of  the  letters  patent,  and  of  the  committing  of  the  grievances 
by  the  said  C.  D.  as  hereinafter  mentioned ,  were  the  true,  original 
and  first  inventors  of  a  certain  new  and  useful  improvement 
in  ,  which  was  not  known  nor  used  before  such  invention 

or  discovery  as  aforesaid,  and  was  not  at  the  time  of  the  plaintiff's 
application  for  letters  patent  therefor,  as  hereinafter  mentioned,  in 
public  use  or  on  sale,  with  the  consent  or  allowance  of  said  J.  L. 
and  L.  H.,  or  either  of  them;  and  that  the  said  J.  L.  and  L.  H. 
being  such  original  and  first  inventors,  and  being  citizens  of  the 
United  States,  obtained  for  said  invention  letters  patent  of  the 
United  States  in  due  form  of  law,  under  the  seal  of  the  Patent- 
OflSce,  bearing  date  the  .     The  plaintiff  further  states  that 

the  said  letters  patent,  having  been  wholly  assigned  by  the  said  J. 
L.  and  L.  H.  to  him,  and  having  been  surrendered  by  him  for 
being  partially  invalid  on  account  of  a  defective  specification, 
were  cancelled  and  new  letters  ordered  to  issue  to  him  on  the 
amended  specification.  And  the  plaintiff  did  accordingly  obtain 
new .  letters    patent  for    such    invention    in    due    form    of    law, 


620  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

upon  such  amended  specification,  under  the  seal  of  the  Patent- 
Office,  and  signed  by  the  Secretary  of  the  Interior,  and  counter- 
signed by  the  Commissioner  of  Patents,  and  bearing  date  the  , 
eighteen  hundred  and  ,  which  said  reissued  letters  patent 
did  grant  according  to  law,  to  the  said  A.  B.,  his  heirs,  adminis- 
trators and  assigns,  for  the  term  of  years  from  the  said 
day  of  ,  eighteen  hundred  and  ,  the  full  and  ex- 
clusive right  and  liberty  of  making,  constructing,  using  and  vend- 
ing to  others  to  be  used  the  said  improvement,  a  description  whereof 
was  given  in  the  said  specification  and  in  a  certain  schedule  to  said 
letters  annexed  and  made  part  thereof,  as  by  reference  to  said  let- 
ters patent  and  the  said  specification  thereto  annexed,  which  the 
plaintifi"  now  brings  here  into  court,  will  fully  appear. 

And  the  plaintiff  further  says  that  from  the  time  of  the  granting 
to  him  of  the  said  letters  patent  hitherto,  he  has  made,  used  and 
vended  to  others  to  be  used  the  said  improvement,  to  his  great 
advantage  and  profit.  Yet  the  said  defendant,  well  knowing  the 
premises,  but  contriving  to  injure  the  plaintiff,  on  the 
day  of  ,  eighteen  "hundred  and  ,  and  at  divers  other 

times  before  and  afterwards,  during  the  said  term  of  years 

mentioned  in  said  letters  patent,  and  before  the  commencement  of 
this  suit,  at  ,  in  the  county  of  and  state  of  , 

unlawfully  and  wrongfully,  and  without  the  consent  or  allowance 
and  against  the  will  of  the  plaintiff,  did  use,  and  cause  to  be  used, 
the  said  improvement,  in  violation  and  infringement  of  the  ex- 
clusive right  so  secured  to  plaintiff  by  said  letters  patent  as  afore- 
said, and  contrary  to  the  form  of  the  statute  of  the  United  States 
in  such  case  made  and  provided,  whereby  the  plaintiff  has  been 
greatly  injured  and  deprived  of  great  profit  and  advantage,  which 
he  otherwise  would  have  derived  from  said  improvement,  and  has 
sustained  actual  damage  to  the  amount  of  dollars ;  and  by 

force  of  the  statute  aforesaid,  an  action  hath  accrued  to  him  to  re- 
cover the  said  actual  damages,  and  such  additional  amount,  not 
exceeding  in  the  whole  three  times  the  amount  of  such  actual  dam- 
age, as  the  court  may  see  fit  to  order  and  adjudge,  besides  costs. 
Yet  the  said  defendant  ,  though  requested,  hath  never  paid  the 
same,  or  any  part  thereof,  to  the  plaintiff,  but  has  refused,  and 

yet  refuses  so  to  do,  and,  therefore,  the  plaintiff  brings  this  suit. 
G.  F.,  Attorney  and  of  counsel  for  plaintiff. 


FORMS    OF    PLEAS.  621 

FORMS  OF  PLEAS. 

Form  No.  18. 

Plea  and  Special  Notices. 

[Title  as  in  Form  No.  1.] 

And  the  said  defendant  C.  D.,  by  G.  F.  his  attorney,  comes  and 
defends  the  wrong  and  injury,  when,  etc.,  and  says  that  he  is  not 
guilty  of  the  supposed  grievances  above  laid  to  his  charge,  or  any 
or  either  or  any  part  thereof,  in  manner  and  form  as  the  said  plain- 
tiif  hath  above  thereof  complained  against  him,  and  of  this  the  said 
defendant  puts  himself  upon  the  country,  and  the  said  plaintiff"  doth 
the  like,  etc. 

And  it  is  suggested  to  the  court,  now  here,  that  the  defendant 
gives  the  following  notices  in  writing  of  special  matter  to  the  plain- 
tiff, thirty  days  before  trial,  under  section  15  of  the  act  of  Congress 
passed  July  4,  1836,  entitled  "An  act  to  promote  the  progress  of 
the  useful  arts,  and  to  repeal  all  acts  and  parts  of  acts  heretofore 
made  for  that  purpose  :" 

Firsts  Notice  of  Special  Matter. — Take  notice  that  the  above 
named  defendant  will  prove  upon  the  trial  of  this  cause,  in  bar  of 
the  said  plaintiff's  action,  that  the  said  J.  L.  and  L.  H.,  the  as- 
signors of  the  said  plaintiff,  were  not  the  original  or  first  inventors'  of 
[here  describe  the  patent]. 

And  the  said  defendant  will  further  prove,  upon  such  trial  as 
aforesaid,  that  the  same  principle  was  known  to  and  had  been  pre- 
viously combined  by  and  invented  by  0.  P.,  who  resides  (or  resided) 
at  ,  in  the  state  of  ,  and  that  the  same  was  known 

to  and  combined  by  said  0.  P.  as  early  as  ,  1849. 

And  the  said  defendant  will  further  prove,  upon  said  trial  as 
aforesaid,  that  what  is  claimed  in  said  declaration  and  in  said  let- 
ters patent  therein  mentioned,  and  the  specifications  and  drawings 
thereto  attached,  as  the  invention  of  said  assignors  of  said  plaintiff 
named  in  said  declaration,  was  substantially  and  in  principle  known 
to  R.  S.,  of  ,  in  the  state  of 

And  the  said  defendant  will  further  prove,  upon  said  trial  as 
aforesaid,  that  the  thing  patented  in  and  by  the  letters  patent  was 
not  first  invented  by  or  known  to  said  J.  L.  and  L.  H.,  but  the 
same  was  publicly  known  and  used  prior  to  the  time  when  it  is 
alleged  in  this  action  the  same  was  invented  by  them. 


622  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

And  the  defendant  will  prove  that  Q.  R.,  who  resides  at  , 

possessed  such  prior  knowledge  of  the  said  thing  mentioned  as  afore- 
said in  said  declaration. 

And  that  the  said  thing  was  in  public  use  and  on  sale  anterior  to 
the  said  supposed  discovery  or  invention  thereof  by  said  J.  L.  and 
L.  H. 

2d.  Please  take  notice  that,  on  said  trial  of  this  cause,  in  addi- 
tion to  the  notices  already  served  upon  you,  the  defendant  will 
prove  by  J.  S.,  of  ,  and  others,  that  they  knew  of  the  use 

of  said  thing,  or  substantially  the  same,  as  the  alleged  invention  of 
said  J.  L.  and  L.  H.,  and  the  same,  or  substantially  the  same,  was 
used  by  F.  L.,  prior  to  the  alleged  invention  thereof. 

That  the  same,  or  substantially  the  same,  was  previously  in- 
vented and  patented  November  10,  18       ,  by  G.  M. 

And  the  same  was,  previously  to  the  time  when  it  is  claimed  they 
invented  or  discovered  the  same,  in  public  use  with  his  consent  and 
allowance,  and  upon  sale  with  his  consent  and  allowance,  and  sub- 
sequent to  the  time  when  it  is  claimed  he  invented  or  discovered 
the  same. 

H.  J.,  Attorney  for  defendant. 


Form  No.  19. 

Plea ;  general  issue  in  assumpsit. 

[Title  of  cause  as  in  Form  No.  1.] 

The  said  C.  D.,  by  Gr.  F.  his  attorney,  comes  and  defends  the 
wrong  and  injury  when,  etc. ;  and  says  that  he  did  not  undertake 
and  promise  in  the  manner  and  form  as  the  said  A.  B.  hath  above 
thereof  complained  against  him ;  and  of  this  he  puts  himself  upon 
the  country,  etc. 

G.  F.,  Attorney  for  defendant. 


Form  No.  20. 

Plea;  general  issue  nil  debit. 

•    [Title  as  in  Form  No.  1.] 

And  the  said  C.  D.,  by  G.  F.   his  attorney,  comes  and  defends 
the  wrong  and  injury,  when,  etc.,  and  says  that  he  does  not  owe 


FORiMS    OF    PLEAS.  623 

the  said  sum  of  dollars  or  any  part  thereof,  in  the  manner 

and  form  as  the  said  A.  B.  hath  above  thereof  complained  against 
him,  and  of  this  he  puts  himself  upon  the  country,  etc. 

G.  F.,  Attorney  for  defendant. 


Form  No.  21. 

In  debt ;    non  est  factum. 

[Title  as  in  Form  No.  1.] 

And  the  said  C.  D.,  by  G.  F.  his  attorney,  comes  and  defends 
the  wrongs  and  injuries,  when,  etc.,  and  says  that  the  supposed 
writing  obligatory  [or  indenture,  or  articles  of  agreement,  as  the 
case  may  be]  is  not  his  deed,  etc.,  and  of  this  he  puts  himself  upon 
the  country,  etc. 

G.  F.,  Attorney  for  defendant. 


Form  No.  21a. 

In  debt;    nil  tiel  record. 

[Title  as  in  Form  No.  1.] 

And  the  said  C.  D.,  by  G.  F.  his  attorney,  comes  and  defends  the 
wrong  and  injury,  when,  etc.,  and  says,  there  is  not  any  record  of 
the  said  supposed  recognizance  [or,  if  the  action  be  on  a  judgment, 
of  the  said  supposed  recovery]  in  the  said  declaration  mentioned  re- 
maining in  the  court  aforesaid,before  the  said  justices  [or 
judge]  thereof,  in  the  manner  and  form  as  the  said  A.  B.  hath 
above,  in  his  said  declaration,  alleged,  and  this  he,  the  said  C.  D., 
is  ready  to  verify,  wherefore  he  prays  judgment,  if  the  said  A.  B. 
ought  to  have  or  maintain  his  aforesaid  action  thereof  against  him 
the  said  C.  D.,  etc. 

G.  F.,  Attorney  for  defendant. 


Form  No.  22. 

In  covenant. 

[Title  as  in  Form  No.  1.] 

And  the  said  ^.  D.,  by  G.  F.  his  attorney,  comes  and  defends 
the  wrong  and  injury,  when,  etc.,  and  says  that  the  said  indenture 


624  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

[or  "articles  of  agreement,"  or  "deed-poll"]  is  not  his  deed;  and 
of  this  he,  the  said  C.  D.,  puts  himself  upon  the  country,  etc. 

G.  F.,  Attorney  for  defendant. 


Form  No.  23. 


General  issue  in  case  of  trover,  or  for  the  infringement  or  a  patent- 
right  or  copyright. 

[Title  as  in  Form  No.  1.] 

And  the  said  C.  D.,  by  G.  F.  his  attorney,  comes  and  defends 
the  wrong  and  injury,  when,  etc.,  and  says  he  is  not  guilty  of  the 
said  supposed  grievances  above  laid  to  his  charge,  in  manner  and 
form  as  the  said  A.  B.  hath  above  thereof  complained  against  him  ; 
and  of  this  the  said  C.  D.  puts  himself  upon  the  country,  etc. 

G.  F.,  Attorney  for  defendant. 


-  Form  No.  24. 

In  trespass. 

[Caption  and  title  as  in  Form  No.  1.] 

And  that  the  said  C.  D.,  by  G.  F.  his  attorney,  comes  and  de- 
fends the  force  and  injury,  when,  etc.,  and  says  that  he  is  not  guilty 
of  the  said  supposed  trespass  above  laid  to  his  charge,  or  any  part 
thereof,  in  manner  and  form  as  the  said  A.  B.  hath  above  thereof 
complained  against  him ;  and  of  this  he  puts  himself  upon  the 
country. 

G.  F.,  Attorney  for  defendant. 


FORMS  IN  EQUITY. 


Form  No.  25. 

A  bill  to  recover  a  legacy. 

[Title  of  suit  as  in  Form  No.  1.] 

In  Equity. 

To  the  judges   of  the  circuit  court  of  the  United  States  for  the 
district  of  Massachusetts. 

I.  W.,  a  resident  of  the  city  of  New  York,  and  a  citizen  of  the 
state  of  New  York,  an  infant  under  the  age  of  twenty  years,  by 
his  father  and  next  friend,  T.  W.,  a  resident  of  the  same  city  and 
a  citizen  of  the  same  state,  brings  this  his  bill  against  E.  W.  and 
R.  W.,  who  are  both  residents  of  the  city  of  Boston,  and  citizens 
of  the  state  of  Massachusetts. 

And  your  orator  says  that  one  T.  A.,  of  the  city  of  Boston, 
being  seized  and  possessed  of  a  considerable  real  and  personal 
estate,  did,  on  or  about  the  fourth  of  March,  1820,  duly  make  and 
publish  his  last  will  and  testament  in  writing ;  and  thereby,  among 
other  things,  bequeathed  and  devised  to  your  orator,  I.  W.,  the 
sum  of  eight  hundred  dollars,  and  appointed  the  above  named  E. 
W.  and  R.  W.  executors  of  his  last  will  and  testament ;  that  the 
said  testator  departed  this  life  on  or  about  the  twentieth  of  Decem- 
ber, 1822  ;  and  soon  after  the  death  of  the  said  testator,  to  wit,  on  the 
eighth  day  of  January,  1823,  the  defendants  E.  W.  and  R.  W.  duly 
proved  the  said  will  in  the  probate  court  of  the  city  of  Boston,  and 
took  upon  themselves  the  burden  and  execution  thereof;  and  did, 
accordingly,  possess  themselves  of  the  testator's  real  and  personal 
estate,  amounting  to  the  sum  of  five  thousand  dollars  and  upwards. 

And  your  orator  further  says  that  he  has,  by  his  father  and 
next  friend,  T.  W.,  applied  to  the  defendants,  at  various  times  and 
since  his  said  legacy  became  due  and  payable,  to  pay  the  same  for 
your  orator's  benefit ;  but  they  have  positively  refused  to  pay  or 
secure  for  your  orator's  benefit  the  aforesaid  legacy  or  any  part 
thereof,  pretending  and  alleging  that  the  estate  of  the  said  testator, 
40 


626  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

both  real  and  personal,  was  iiisuflScient  to  discharge  his  just  debts,  and 
that  they  have  exhausted  the  whole  of  the  estate  which  has  come 
into  their  hands  in  paying  such  debts ;  whereas  your  orator  charges 
that  the  estate  of  the  testator  was  of  the  value  of  five  thousand 
dollars,  as  hereinbefore  stated,  and  that  his  debts  were  small  and  of 
even  trifling  value  when  estimated  by  that  amount. 

And  your  orator  charges  that  the  said  defendants  converted  the 
property  of  their  testator  to  their  own  use,  without  making  any 
satisfaction  to  your  orator  for  his  legacy  hereinbefore  mentioned. 

To  the  end,  therefore,  that  the  said  defendants  may,  if  they  can, 
show  why  your  orator  should  not  have  the  relief  hereby  prayed, 
and  may,  upon  their  several  and  respective  corporal  oaths,  and  ac- 
cording to  the  best  and  utmost  of  their  several  and  respective 
knowledge,  remembrance,  information  and  belief,  full,  true,  direct 
and  perfect  answer  make  to  such  of  the  several  interrogatories 
hereinafter  numbered  and  set  forth  as  by  the  note  hereunder  writ- 
ten they  are  respectively  required  to  answer ;  that  is  to  say — 

1.  Whether  it  is  not  a  fact  that  the  said  T.  A.  did  duly  make  and 
publish  his  last  will  and  testament,  and  therein  bequeath  to  your 
orator  a  legacy  of  eight  hundred  dollars  ? 

2.  Whether  it  is  not  a  fact  that  the  said  T.  A.,  in  his  last  will 
and  testament,  appointed  them,  the  said  E.  W.  and  R.  W.,  to  be 
executors  of  the  same? 

3.  Whether  it  is  not  a  fact  that  the  said  testator  died  without 
revoking  said  last  will  and  testament,  but  in  fact  leaving  the  same 
in  full  force  ? 

4.  Whether  it  is  not  a  fact  that  the  said  defendants,  or  one  of 
them,  proved  the  said  will  in  the  probate  court  of  the  city  of  Boston, 
in  due  form  of  law,  and  took  upon  themselves  the  execution  thereof? 

5.  Whether  it  is  not  a  fact  that  they  have  possessed  themselves 
of  the  real  and  personal  estate,  goods,  chattels  and  effects  of  the 
said  T.  A.,  deceased  ? 

6.  Whether  it  is  not  a  fact  that  assets  of  said  testator  have  come 
into  their  hands  more  than  sufficient  to  discharge  his  just  debts? 

7.  Whether  it  is  not  a  fact  that  they,  and  each  of  them,  have 
refused  to  pay  the  legacy  bequeathed  to  your  orator,  and  that  it 
remains  wholly  unpaid  ? 

Your  orator  prays  that  the  said  defendants  may  be  compelled  to 
render  a  full  and  perfect  account  of  the  estate,  goods,  chattels  and 


FORMS    IN    EQUITY.  627 

effects  of  the  said  T.  A.,  deceased,  the  value  thereof,  the  debts  due 
by  said  deceased,  and  to  "whom  they  have  been  paid  and  are  pay- 
able, the  debts  due  to  said  testator,  and  which  of  them  have  been 
paid  to  the  said  executors,  and  all  other  matters  and  things  concern- 
ing the  condition  of  said  real  estate.  And  that  this  they  may  do 
upon  their  corporal  oaths,  to  the  best  of  their  respective  knowledge, 
information  and  belief. 

Your  orator  further  prays  that  the  said  defendants  may  be  com- 
pelled to  pay  the  legacy  of  eight  hundred  dollars  bequeathed  to 
your  orator  by  the  testator,  and  that  the  same  may  be  placed  at 
interest  for  the  benefit  of  your  orator  until  he  attains  the  age  of 
twenty-one  years,  and  then  paid  over  to  him.  And  that  in  the  mean- 
time the  interest  thereof  be  paid  to  your  orator's  father,  to  be  ap- 
plied by  him  to  the  support  and  maintenance  of  your  orator.  And 
that  your  orator  may  have  such  further  or  other  relief  as  the  nature 
of  this  case  may  require. 

And  your  orator  further  prays  that  your  honors  will  grant  unto 
your  orator  the  writ  of  subpoena,  issuing  out  of  and  under  the  seal 
of  this  court,  to  be  directed  to  the  said  defendants,  E.  W.  and  R. 
W.,  commanding  them  and  each  of  them  by  a  certain  day,  and 
under  a  certain  penalty  therein  named,  to  appear  before  your 
honors  in  the  circuit  court  of  ,  and  then  and  there  answer 

the  premises,  and  abide  the  order  and  decree  of  the  court. 

G.  F.,  Solicitor  for  complainant. 


Form  No.  26.' 

Bill  to  restrain  the  infringement  of  copyrights. 

In  Equity. 

To  the  judges  of  the  circuit  court  of  the  United  States  for  the 
district  of  Massachusetts. 

The  bill  of  complaint  of  C.  F.,  F.  G.  W.,  L.  T.  and  J.  S.,  all  of 
C.,  in  the  county  of  M.,  in  said  district,  against  B.  M.,  N.  C,  G. 
P.  L.,  and  T.  H.  W.  and  C.  W.  U., 

Respectfully  show :  your  orators  C.  F.,  F.  G.  W.  and  L.  T., 
printers  and  publishers  and  co-partners,  doing  business  under  the 
name  and  style  of  F.,  W.  &  T.,  and  J.  S.,  gentlemen,  all  of  C,  in 

1  See  Fulsom  v.  Marsh,  2  Story  100. 


628  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

the  county  of  M.,  in  said  district  of  Massachusetts,  and  all  being 
citizens  of  the  United  States,  of  that  the  said  J.  S.  is,  and  hereto- 
fore at  the  time  of  the  infringement  hereinafterwards  mentioned  was, 
proprietor  of  the  copyright  of  a  work  of  which  the  said  J.  S.  is  the 
author  and  compiler,  entitled  "  The  Writings  of  George  Washington, 
being  his  Correspondence,  Addresses,  Messages  and  other  papers, 
official  and  private,  selected  and  published  from  the  original  manu- 
scripts, with  a  Life  of  the  Author,  Notes  and  Illustrations,  by  J. 
S.,"  consisting  of  twelve  volumes,  of  all  which  volumes  respectively 
thecopyright  wastakenoutby  J.  S.,  previous  to  the  publication  thereof 
respectively,  and  secured  according  to  law  ;  the  said  J.  S.,  at  the  time 
of  taking  out  and  securing  said  copyrights  respectively,  and  still  being 
a  citizen  of  the  United  States,  and  the  term  of  each  and  all  of  which  has 
still  more  than  eight  years  to  run;  and  that  said  F.,  W.  &  T.,  before  the 
infringement  hereinafterwards  complained  of,  had,  by  an  agreement 
with  said  J.  S.,  undertaken  and  become  interested  in  and  assumed 
a  part  of  the  risk  and  responsibility  of  the  publication  of  said  work, 
and  have  ever  since  continued,  and  still  continue,  to  be  thus  inter- 
ested ;  and  that  ever  since  the  first  publication  of  the  several  volumes 
of  said  work,  the  public  have  been  supplied  with  copies  of  the 
same  by  said  J.  S.  and  the  publishers  of  the  same  at  reasonable 
prices ;  and  that  said  J.  S.  and  said  F.,  W.  &  T.  have  incurred 
very  large  expenses  upon  said  publication,  and  have  been  and  are 
in  receipt  of  large  amounts,  the  proceeds  of  the  sale  of  said  work, 
to  reimburse  their  expenses  and  remunerate  their  care  and  labor 
bestowed  on  the  same.  And  your  orators  further  show  that  they, 
your  orators,  being  in  the  receipt  of  large  sums,  the  proceeds  of 
the  sale  of  said  work  as  aforesaid,  under  said  copyrights,  B.  M., 
N.  C.  and  T.  H.  W.,  all  in  B.,  in  the  county  of  S.,  in  said  district 
of  Massachusetts,  and  G.  P.  L.,  of  C,  in  the  county  of  M.,  in  the 
district  of  N.  H.,  book-sellers,  being  co-partners  under  the  name, 
style  and  firm  of  M.,  C,  L.  &  W.,  and  also  C.  W.  U.,  of  S.,  in 
the  county  of  E.,  in  said  district  of  Massachusetts,  clerk,  all  of 
them  well  knowing  that  said  J.  S.  held  such  copyrights,  and  said 
F.,  W.  &  T.  were  interested  in  the  said  publication,  and  deliber- 
ately, after  due  notice,  intending  to  infringe  said  copyrights  at  said 
B.,  on  the  fifth  day  of  August,  in  the  year  of  our  Lord  eighteen 
hundred  and  forty,  and  at  divers  times  before  and  since  the  said 
fifth  day  of  August,  without   the  allowance  and  consent  of  your 


FORMS    IN    EQUITY.  629 

orators,  or  either  of  them,  published  and  exposed  to  sale  and  sold 
a  work  in  two  volumes,  entitled  "  The  Life  of  Washington,"  in  the 
form  of  an  autobiography,  the  narrative  being,  to  a  great  extent, 
conducted  by  himself  in  extracts  and  selections,  his  own  writings, 
with  portraits  and  other  engravings,  consisting   of  pages 

in  the  whole,  which  they  still  continue  to  expose  to  sale,  having 
had  due  notice,  and  well  knowing  that  the  same  is  a  copy  from, 
and  an  infringement  and  piracy  of,  said  "  Writings  of  George 
Washington,  etc.,  with  a  Life  of  the  Author,"  so  published  by  your 
orators  as  aforesaid.  And  your  orators  aver  that  three  hundred 
and  eighty-eight  pages  of  said  piratical  work  are  copied  verbatim  et 
literatim  from  the  said  work  so  edited  and  compiled  by  said  J.  S.  as 
aforesaid,  and  so  published  by  your  orators  as  aforesaid,  consisting 
of  matter  which  was  published  originally  by  said  J.  S.,  under  his  said 
copyright,  and  which  had  never  before  been  published  or  printed, 
and  which  he,  the  said  J.  S.,  and  his  assigns  had  the  exclusive  right 
and  privilege  to  print,  publish,  sell  and  expose  to  sale  ;  and  that 
many  other  parts  of  said  piratical  work  published  by  said  parties 
complained  of,  besides  said  three  hundred  and  eighty-eight  pages, 
are  infringements  upon  said  J.  S.'s  said  copyrights,  whereby  your 
orators  have  sustained  great  damage,  detriment  and  injury.  And 
your  orators  further  show  that  said  M.,  C,  L.  &  W.  and  U.  still 
continue  and  threaten  hereafter  to  continue  to  print,  publish  and 
expose  to  sale  and  sell  copies  of  the  said  piratical  work,  the  pro- 
tests, expostulations  and  warnings  of  your  orators  to  them  to  the 
contrary  notwithstanding.  All  such  actions,  doings  and  pretences 
are  contrary  to  equity  and  good  conscience,  and  tend  to  the  injury 
of  your  orators  in  the  premises.  In  consideration  whereof,  and 
forasmuch  as  your  orators  are  remediless  in  the  premises  at 
law,  and  can  have  no  adequate  relief  save  in  a  court  of  equity, 
where  matters  of  this  and  the  like  nature  are  properly  cognizable 
and  relievable ;  and  to  the  end  that  said  M.,  C,  L.  &  W.  and  U. 
may  appear  and  answer  all  and  singular  the  matters  and  things 
hereinbefore  set  forth  and  complained  of,  particularly  how  many 
copies  of  said  piratical  work  they  have  sold,  what  number  they 
have  on  hand,  and  that  they  be  restrained  by  injunction  issuing 
from  this  court  from  selling  or  exposing  to  sale,  or  otherwise 
disposing  of,  any  copies  of  said  piratical  work  ;  and  that  they  be 
ordered  and  decreed  to  render  an  account  of  the  copies  of  the  same 


630  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

that  they  have  sold,  and  to  pay  over  the  profits  of  such  sales  to  the 
plaintiffs,  and  that  they  be  ordered  to  surrender  and  deliver  up  the 
copies  on  hand  and  the  stereotype  plates  of  said  piratical  work  to 
an  oflScer  of  this  court  to  be  cancelled  and  destroyed,  and  be  ordered 
to  pay  the  plaintiffs  their  costs ;  and  that  your  orators  may  obtain 
such  other  and  further  relief  as  to  this  honorable  court  may  seem 
meet,  or  as  equity  may  require, — may  it  please  this  honorable 
court  to  grant  to  your  orators  a  writ  of  subpoena  directed  to  the 
said  M.,  C,  L.  &  W.  and  U.,  commanding  them  at  a  day  certain, 
and  under  a  certain  penalty  to  be  therein  inserted,  personally  to 
be  and  appear  before  this  honorable  court,  then  and  there  to  answer 
the  premises,  and  to  stand  and  abide  such  order  and  decree  therein 
as  to  this  honorable  court  shall  seem  agreeable  to  equity  and  good 
conscience. 

S.  R.,  Solicitor  for  complainants. 


ToRM  No.  27. 

Bill  to  restrain  the  infringement  of  a  patent-right. 

[Title  as  in  Form  No.  1 ;  no  jurisdiction  clause  required.] 

In  Equity. 

To  the  judges  of  the  circuit  court  of  the  United  States  for  the 
district  of  Massachusetts. 

E.  H.,  Jr.,  of  B.,  in  the  state  of  New  York,  and  a  citizen  of  the 
state  of  New  York,  brings  this  his  bill  against  C.  W.,  of  B.,  in  the 
state  of  Massachusetts,  and  a  citizen  of  the  state  of  Massachusetts. 

And  thereupon  your  orator  complains  and  says  that  he,  being 
the  original  and  first  inventor  of  a  new  and  useful  improvement  in 
sewing-machines,  fully  described  in  the  letters  patent  issued  to  him 
therefor  as  hereinafter  stated,  and  not  known  or  used  by  others 
before  his  invention  thereof,  and  not  at  the  time  of  his  application 
for  letters  patent  therefor  in  public  use  or  on  sale  with  his  con- 
sent or  allowance  as  the  inventor ;  and  being  a  citizen  of  the  United 
States,  and  having  made  due  application,  and  having  fully  and  in 
all  respects  complied  with  all  the  requisitions  of  the  law  in  that 
behalf,  did  obtain  letters  patent  therefor,  issued  in  due  form  of  law 
to  him  in  the  name  of  the  United  States,  and  under  the  seal  of  the 


FORMS    IN    EQUITY.  631 

Patent-OfBce  of  the  United  States,  and  signed  by  N.  P.  T.,  Acting 
Secretary  of  State,  and  countersigned  by  H.  H.  S.,  Acting  Com- 
missioner of  Patents,  bearing  date  the  tenth  day  of  September,  in 
the  year  of  our  Lord  eighteen  hundred  and  forty-six,  whereby  was 
granted  and  secured  according  to  law  to  your  orator,  his  heirs,  ad- 
ministrators or  assigns,  for  the  term  of  fourteen  years  from  said 
date,  the  full  and  exclusive  right  and  liberty  of  making,  construct- 
ing, issuing  and  vending  to  others  to  be  used  the  said  improvement 
in  sewing-machines  therein  specified  and  claimed,  as  in  and  by  said 
letters  patent,  or  a  certified  copy  thereof,  here  in  court  to  be  pro- 
duced, will  more  fully  appear. 

And  your  orator  further  shows  unto  your  honors  that  certain 
assignments  of  certain  rights  in  said  patent  have  been  made  and  duly 
recorded  in  the  Patent-Office  of  the  United  States,  whereby  your 
orator,  prior  to  the  infringements  herein  complained  of,  became  and 
now  is  the  sole  owner  of  said  patent,  as  in  and  by  said  assignments, 
or  certified  copies  thereof,  here  in  court  to  be  produced,  will  more 
fully  appear. 

And  your  orator  further  shows  unto  your  honors  that  the  said 
improvement  in  sewing-machines,  granted  to  him  as  aforesaid,  has 
hitherto  been  in  the  exclusive  possession  of  your  orator  and  of  his 
grantees,  and  has  hitherto  been  and  still  is  of  great  value  and  profit 
to  your  orator  ;  and  that  a  license  fee  or  patent  rent,  under  his  said 
patent,  has  hitherto  been  and  still  is  paid  to  your  orator  for  the 
largest  portion  of  all  the  sewing-machines  manufactured  and  sold 
in  the  United  States ;  yet  the  said  defendant,  well  knowing  the 
premises,  but  contriving  how  to  injure  your  orator,  and  without  his 
consent  and  allowance,  and  without  right,  and  in  violation  of  said 
letters  patent  and  your  orator's  exclusive  rights  secured  to  him 
aforesaid,  has  made,  used  or  vended,  and  still  does  make,  use  or 
vend  to  others  to  be  used  in  said  district  and  in  other  parts  of  the 
United  States,  a  large  number  of  sewing-machines,  but  how  many 
your  orator  cannot  state,  but  prays  that  the  defendant  may  discover 
and  set  forth  each,  embracing  substantially  the  improvement  in  sew- 
ing-machines, or  a  material  part  thereof,  patented  to  your  orator  as 
aforesaid,  and  thereby  the  said  defendant  has  infringed,  and  still 
does  infringe,  and  cause  your  orator  to  fear  that  in  future  he  will 
infringe,  upon  the  exclusive  rights  and  privileges  intended  to  be 
secured  to  your  orator  in  and  by  his  said  letters  patent. 


632  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

And  your  orator  further  shows  unto  your  honors  that  heretofore 
the  validity  of  his  said  patent  has  been  uniformly  affirmed  after 
severe  and  repeated  contestation  ;  namely,  by  a  verdict  and  judg- 
ment thereon  at  law  in  1852,  and  by  six  final  decrees  in  equity  in 
the  circuit  court  of  the  United  States  for  the  district  of-Massachu- 
setts,  and  by  one  final  decree  in  equity  in  the  circuit  court  of  the 
United  States  for  the  southern  district  of  New  York,  all  obtained 
in  favor  of  said  patent  prior  to  August,  1854. 

And  your  orator  further  shows  unto  your  honors  that  the  sew- 
ing-machines made  and  sold  by  the  defendant,  as  herein  complained 
of,  are  in  their  essential  parts  and  character  substantially  like  the 
sewing-machines  against  which  injunctions  were  obtained  in  the 
suits  aforesaid,  by  your  orator,  or  by  your  orator  and  his  then  co- 
owner  of  said  patent. 

And  your  orator  has  requested  the  said  defendant  to  desist  from 
making,  using  or  vending  to  others  to  be  used  the  said  sewing-ma- 
chines embracing  the  said  improvements  patented  to  your  orator, 
and  to  account  with  and  pay  over  to  your  orator  the  profits  made 
by  said  defendant  by  reason  of  the  unlawful  making,  using  or  vend- 
ing of  said  sewing-machines  embracing  said  patent  improvement  of 
your  orator.  But  now,  so  it  is,  may  it  please  your  honors,  that 
said  defendant  has  combined  and  confederated  with  other  persons, 
to  your  orator  unknown,  but  whom,  when  discovered,  your  orator 
prays  leave  to  make  defendants  hereto,  to  resist  and  destroy  the 
exclusive  rights  and  privileges  secured  to  your  orator  as  aforesaid, 
and  to  make,  use  and  vend  said  improvement  in  sewing-machines, 
patented  to  your  orator  as  aforesaid,  without  the  license  of  your 
orator,  and  in  violation  of  his  just  rights  in  the  premises,  all  of 
which  is  contrary  to  equity  and  good  conscience. 

To  the  end,  therefore,  that  the  said  defendant  may,  if  he  can, 
show  why  your  orator  should  not  have  the  relief  herein  prayed,  and 
may  under  oath,  and  according  to  his  best  and  utmost  knowledge, 
remembrance,  information  or  belief,  full,  true,  direct  and  perfect 
answer  make  to  all  and  singular  the  premises,  and  more  especially 
may  answer,  discover  and  set  forth  whether  during  any  and  what 
period  of  time,  and  when,  he  has  made,  used  and  vended  to  others 
to  be  used,  for  any  and  what  consideration,  any  and  how  many 
sewing-machines,  and  whether  or  not  the  same  embraced  the  im- 
provement  in  sewing-machines,    or    any   substantial    part  thereof 


FORMS    IN    EQUITY.  633 

patented  to  jour  orator  as  aforesaid,  or  how  the  same  differed  from 
your  orator's  said  patent,  if  at  all. 

And  that  the  said  defendant  may  answer  the  premises,  and  may 
be  decreed  to  account  for  and  pay  over  to  your  orator  all  gains  and 
profits  realized  from  his  unlawful  making,  using  or  vending  of  sew- 
ing-machines, embracing  said  improvement  patented  to  and  vested 
in  your  orator  as  aforesaid,  and  may  be  restrained  by  an  injunction 
to  be  issued  out  of  this  honorable  court,  or  by  one  of  your  honors, 
according  to  law  in  such  case  provided,  from  making,  using  or 
vending  any  sewing-machines  embracing  said  improvement,  or  any 
substantial  part  thereof,  patented  to  your  orator  as  aforesaid,  and 
that  the  infringing  machines,  now  in  the  possession  -or  under  the 
control  of  the  defendant,  may  be  delivered  up  to  your  orator  or  be 
destroyed ;  and  for  such  further  and  other  relief  in  the  premises  as 
the  nature  of  the  case  may  require,  and  to  your  honors  may  seem 
meet. 

May  it  please  your  honors  to  grant  unto  your  orator,  not  only  a 
writ  or  writs  of  injunction,  conformable  to  the  prayer  of  this  bill, 
but  also  a  writ  or  writs  of  subpoena  to  be  directed  to  the  said  C. 
W.  and  confederates,  when  discovered,  commanding  him  and  them 
at  a  certain  time,  and  under  a  certain  penalty,  therein  to  be  limited, 
personally  to  be  and  appear  before  your  honors  to  the  honorable 
court,  then  and  there  to  answer  unto  this  bill  of  complaint,  and  to 
do  and  receive  what  to  your  honors  may  seem  meet  in  the  prem- 
ises. E.  H.,  Jr., 

By  G.  F.,  his  solicitor. 


Form  No.  28. 


Another  form  of  bill  to  restrain  an  infringement  of  patent  right,  title 
having  been  established  in  previous  suit,  and  for  accounts,  etc. 

[Title  of  cause  as  in  Form  No.  L] 

In  Equity. 

To  the  judges  of  the  circuit  court  of  the  United  States  for  the 
district  of  Massachusetts. 
C.  G.,  of  New  Haven,  in  the  state  of  Connecticut,  and  The 
Union  India  Rubber  Company,  a  corporation  duly  established  by 
the  laws  of  the  state  of  New  York,  and  having  their  principal  office 
and  place  of  business  in  that  state,  bring   this  their   bill  of  com- 


634  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

plaint  against  The  Beaverly  Rubber  Company,  a  corporation  duly 
established  by  the  laws  of  Massachusetts,  and  having  their  princi- 
pal office  and  place  of  business  in  said  state. 

And  thereupon  your  orators  complain  and  say  that  before  the 
fifteenth  day  of  June,  eighteen  hundred  and  forty-four,  the  said 
C.  G.  became  and  was  the  first  and  original  inventor  of  a  certain 
"new  and  useful* improvement  in  India-rubber  fabrics,"  which  your 
orators  verily  believe  had  not  been  known  or  used  before  his  inven- 
tion thereof,  and  which  was  not,  at  the  time  of  his  application  for  a 
patent  therefor,  in  public  use  or  on  sale  with  his  consent  or  allow- 
ance ;  and  being  such  first  and  original  inventor,  and  being  desirous 
of  obtaining  an  exclusive  property  in  the  invention  by  him  made,  the 
said  C.  G.  made  application  in  writing  to  the  Commissioner  of  Pat- 
ents, expressing  such  desire,  and  delivering  a  written  description  of 
his  invention  or  discovery  and  a  specification  of  improvement  by 
him  claimed ;  whereupon  such  proceedings  were  had  that  on  the 
fifteenth  day  of  June,  eighteen  hundred  and  forty-four,  letters  pat- 
ent of  the  United  States,  entitled  for  "a  new  and  useful  improve- 
ment in  India-rubber  fabrics,"  signed  by  J.  C.  C,  Secretary  of 
State,  and  countersigned  and  sealed  with  the  seal  of  the  Patent- 
Office  by  H.  L.  E.,  Commissioner  of  Patents,  were  issued  to  your 
orator  in  due  form  of  law,  granting  to  your  orator,  C.  G.,  his 
heirs,  administrators  or  assigns,  for  the  term  of  fourteen  years 
from  the  day  of  the  date  thereof,  the  full  and  exclusive  right  and 
liberty  of  making,  constructing,  using  and  vending  to  others  to  be 
used  the  said  improvement,  a  description  whereof  was  annexed  to 
to  the  said  letters  patent. 

And  your  orators  further  show  that  afterwards  the  said  C.  G.  sur- 
rendered the  said  last-mentioned  letters  patent  to  the  Commissioner 
of  Patents,  in  due  form  of  law,  and  such  proceedings  were  had  that 
said  Commissioner  did,  on  the  twenty-fifth  day  of  December,  eight- 
een hundred  and  forty-nine,  reissue  to  said  C.  G.  letters  patent  of 
the  United  States,  entitled  for  a  new  and  useful  "improvement  in 
processes  for  the  manufacture  of  India  rubber,"  signed  by  T.  E.,  Sec- 
retary of  State,  and  countersigned  and  sealed  with  the  seal  of  the 
Patent-Office  by  T.  E.,  Commissioner  of  Patents,  whereupon  there 
was  granted  to  your  orator,  said  C.  G.,  his  heirs,  administrators  and 
assigns,  for  the  term  of  fourteen  years  from  the  fifteenth  day  of 
June,  eighteen  hundred  and  forty-four  [being  the  date  of  the  said 


I 


FORMS    IN    EQUITY.  635 

surrendered  letters  patent],  the  full  and  exclusive  right  and  liberty 
of  making,  constructing  and  using,  or  vending  to  others  to  be  used, 
the  said  improvement,  a  description  whereof  was  annexed  to  said 
reissued  letters  patent,  as  by  reference  to  the  same,  or  to  a  true 
copy  thereof  hereunto  annexed,  and  making  a  part  of  this  your 
orator's  bill  of  complaint,  will  more  fully  and  at  large  appear. 

And  your  orators  further  show  that  soon  after  the  granting  of 
the  said  letters  patent,  one  H.  H.  D.  commenced  infringing  the 
same,  and  that  various  suits  were  brought  against  him  by  your 
orator,  C.  G.,  at  law  and  in  equity. 

A  suit  was  also  commenced  by  your  orator,  C.  G.,  against  E.  S. 
and  J.  B.  K.,  the  agents  of  said  H.  H.  D.,  for  infringing  said 
patent,  in  the  circuit  court  of  the  United  States  for  the  district 
of  Massachusetts,  in  the  year  1845,  and  said  H.  H.  D.  and  his  said 
agents,  E.  S.  and  J.  B.  K.,  by  their  pleas,  answers  and  notices, 
denied  that  your  orator,  C.  G.,  was  the  first  and  original  inventor 
of  the  improvement  described  and  claimed  in  said  patent  of  June 
15,  1844,  and  also  denied  that  the  said  patent  was  of  any  validity, 
for  the  reasons  in  said  pleas,  notices  and  answers  set  forth,  upon 
which  allegations  the  parties  were  at  issue ;  that  said  suits  were 
pending  in  said  court  till  the  fall  of  1846,  and  for  the  trial  of  which 
preparations  had  been  made  on  both  sides. 

And  your  orators  further  show  that  said  suits  were  settled  upon 
the  application  of  said  H.  H.  D.,  and  a  written  agreement  was  ex- 
ecuted between  said  H.  H.  D.  and  your  orator  C.  G.,  whereby 
said  H.  H.  D.  agreed,  among  other  things,  to  pay  five  thousand 
dollars  for  said  settlement,  and  for  a  license  to  manufacture  certain 
articles  under  said  patent  and  other  patents  of  your  said  orator,  C. 
G.,  and  to  pay  a  tarifi"  therefor,  and  covenanted  not  to  infringe 
said  patent,  and  said  H.  H.  D.  then  and  thereby  acquiesced  in  your 
orator's  (said  C.  G.'s)  rights,  and  acknowledged  the  validity  of  said 
patents,  and  said  sum  of  five  thousand  dollars  was  paid  by  said  H. 
H.  D.  and  said  suits  were  discontinued,  except  the  said  suit  against 
E.  S.  and  J.  B.  K.,  agents  of  said  H.  H.  D.,  in  which  a  verdict 
was  taken  and  a  judgment  entered  up  against  them  in  favor  of 
your  orator,  C.  G.,  and  satisfied  as  agreed  between  your  orator 
(said  C.  G.)  and  said  H.  H.  D.,  as  by  the  record  thereof  now  pro- 
duced here  in  court  will  fully  appear.  And  your  orators  further 
show  that  soon  after  said  settlement  and  the  discontinuance  of  said 


636  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

suit,  said  H.  H.  D.  recommenced  his  infringement  of  said  patent; 
whereupon  your  orator,  C.  G.,  about  the  first  day  of  November, 
eighteen  hundred  and  fifty,  filed  his  bill  against  the  said  H.  H.  D. 
in  the  circuit  court  of  the  United  States  for  the  district  of  New- 
Jersey,  setting  out  the  said  letters  patent  and  the  infringement 
thereof,  praying  an  injunction  and  account  against  the  said  H.  II. 
D. ;  to  which  bill  of  complaint  the  said  H.  H.  D.  filed  his  answer, 
denying  the  validity  of  the  said  letters  patent,  and  setting  up  that 
some  other  persons  than  your  orator,  C.  G.,  were  the  inventors  of 
the  things  patented  by  him,  and  that  the  said  reissue  to  your  orator, 
C.  G.,  had  no  title  by  reason  thereof  in  his  said  invention ;  and 
issue  being  joined  thereon,  the  parties  proceeded  to  proofs,  which 
were  taken  at  great  length  and  for  a  long  time. 

And  your  orators  further  show  that,  the  proofs  in  said  cause 
being  taken,  the  cause  was  brought  to  final  hearing  on  its  merits 
at  the  March  term  of  the  circuit  court  of  the  United  States  for 
the  district  of  New  Jersey,  in  the  year  eighteen  hundred  and  fifty- 
two,  before  justices  G.  and  D.,  and  by  them  held  under  advisement 
until  the  September  term  then  next  following,  when  the  judgment 
of  the  court  was  pronounced,  and  opinions  delivered,  copies  whereof 
are  hereunto  annexed. 

And  the  said  court  then  decided  that  both  the  said  letters  patent 
were  valid  in  law,  and  that  your  orator  C.  G.  was  the  inventor  of 
the  improvement  patented,  as  aforesaid,  by  your  orator  C.  G.,  and 
referred  to  in  said  bill  of  complaint ;  that  the  said  reissued  letters 
patent  were  lawfully  reissued,  and  by  a  decree  pronounced  in  said 
cause,  perpetually  enjoined  the  said  H.  H.  D.  from  making,  con- 
structing, using,  or  vending  to  others  to  be  used,  the  said  improve- 
ments, and  ordered  an  account  to  be  taken  of  the  damages  due  your 
orator  C.  G.  by  reason  of  the  infringements  of  said  H.  H.  D.  already 
committed ;  as  by  reference  to  a  true  copy  of  the  judgment  of  the 
court,  or  to  the  record  of  proceedings  therein,  ready  to  be  produced, 
will  more  fully  and  at  large  appear. 

And  your  orators  further  show  that,  from  the  granting  of  said 
letters  patent  until  the  hearing  of  the  said  cause  against  said  H. 
H.  D.,  said  C.  G.  had  and  enjoyed  an  exclusive  possession  and  use 
of  the  said  improvements,  by  himself  and  his  licensees,  except  so  far 
as  the  same  were  disturbed  by  said  H.  H.  D.  and  those  combined 
and  confederated  with  him,  and  by  a  few  other  persons  who  from 


FORMS    IN    EQUITY.  637 

time  to  time  began  to  violate  his  rights,  but  who  uniformly  acqui- 
esced in  them  and  submitted  to  pay  tariffs  for  their  future  enjoy- 
ment when  they  became  acquainted  with  your  orator's  (said  C.  G.'s) 
rights  secured  by  his  patent,  so  far  as  your  orators  have  been  in- 
formed and  believe. 

And  your  orators  further  show  that  the  annexed  schedule,  marked 
A,  is  a  correct  copy  of  the  original  letters  patent  aforesaid;  the  an- 
nexed schedule,  marked  B,  is  a  correct  copy  of  the  letters  of  reissue 
aforesaid;  and  the  annexed  schedule,  marked  C,  contains  true  copies 
of  the  opinion  delivered  as  aforesaid  by  the  judges  of  the  circuit 
court  of  the  United  States  for  the  district  of  New  Jersey. 

And  your  orators  further  show  that,  on  the  fifteenth  day  of 
June,  A.  D.  1858,  the  Honorable  J.  H.,  Commissioner  of  Patents 
of  the  United  States,  did,  as  such  commissioner,  duly  grant  to  said 
C.  G.  an  extension  of  said  letters  patent  of  June  15,  1844,  as  re- 
issued December  25,  1849,  for  the  further  term  of  seven  years 
from  the  said  fifteenth  day  of  June,  A.  D.  1858,  and  that  the  cer- 
tificate and  award  of  such  extension  were,  by  the  said  commis- 
sioner, duly  endorsed  on  the  letters  patent  of  which  extension  was 
so  granted. 

And  your  orators  further  show  that,  before  the  said  extension, 
the  said  Union  India  Rubber  Company  held,  under  certain  agree- 
ments, rights  from  said  C.  G.,  authorizing  them  to  make  va^rious 
articles  of  India  rubber  according  to  his  process,  so  as  aforesaid 
patented,  and  giving  them  the  exclusive  right  to  make  clothing 
according  to  that  process.  That  on  the  twenty-third  day  of  April, 
A.  D.  1858,  and  afterwards,  on  the  third  day  of  July,  A.  D.  1858, 
said  C.  G.,  for  a  valuable  consideration,  executed  and  delivered  to 
the  said  Union  India  Rubber  Company  certain  agreements  contin- 
uing such  rights.  That  all  the  agreements  aforesaid  are  in  full 
force,  and  true  copies  of  them  are  hereto  annexed,  those  first  men- 
tioned being  marked  as  Exhibit  D,  and  the  two  last  mentioned 
agreements  being  marked  as  Exhibit  E. 

And  your  orators  further  show  that  the  said  Union  Rubber 
Company,  before  extension,  were,  and  ever  since  have  been,  and 
now  are,  engaged  under  said  agreement  in  the  business  of  making 
and  selling  India-rubber  goods  of  various  kinds,  including  clothing, 
which  are  made  under  the  aforesaid  several  agreements,  according 
to  said  process  of  C.  G.,  patented  as  aforesaid. 


638  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

And  your  orators  further  show  that,  amongst  all  persons  engaged 
in  the  manufacture  of  India  rubber  within  the  United  States,  the 
term  or  phrase  "Vulcanized  Rubber  Goods"  is  used  and  is  under- 
stood by  the  defendants  and  other  persons  in  said  business  to  mean 
the  fabric  or  product  made  according  to  said  C.  G.'s  process,  patented 
as  aforesaid,  and  is  so  used  and  understood  as  the  designation  of  all 
goods  made  of  a  compound  of  India  rubber  in  the  original  compo- 
sition, whereof  sulphur  was  present  in  any  form  or  degree ;  such 
compound  being  in  that  state  subjected  to  the  action  of  artificial 
heat,  so  as  to  produce  the  chemical  or  other  changes  or  effects  de- 
scribed in  said  C.  G.'s  original  and  reissued  letters  patent,  and  the 
specifications  thereto  annexed.  And  your  orators  employ  such 
phrase  in  this  bill  of  complaint  in  the  sense  so  explained. 

And  your  orators  further  show  that,  as  they  have  been  informed 
and  believe,  the  said  defendants,  not  only  before  the  extension  of 
C.  G.'s  aforesaid  patent,  but  also  since  that  time,  have  been,  and 
they  now  are,  engaged,  without  the  license  or  consent  of  said  C. 
G.  or  your  orators,  in  making  and  selling,  or  causing  or  procuring 
to  be  made  and  sold,  various  kinds  of  goods  of  vulcanized  rubber, 
which  goods  are  included  in  the  aforesaid  rights  of  your  orators. 
That  the  said  defendants,  in  the  making  of  such  goods,  have,  as 
your  orators  are  informed  and  believe,  used  a  compound  of  India 
rubber  in  which  sulphur  was  present  when  the  compound  was  sub- 
jected to  the  action  of  artificial  heat,  so  as  to  produce  the  aforesaid 
changes  and  effects.  But  your  orators  are  informed  and  believe 
that  said  defendants  claim  or  pretend,  as  to  the  whole  or  some  of 
such  goods,  that  they  do  not  subject  the  same  to  the  particular  degree 
of  heat  mentioned  by  C.  G.  in  his  aforesaid  specifications,  or  that 
in  some  manner  they  avoid  following  exactly  the  process  of  man- 
ufacture so  described  by  him.  But  your  orators  aver  and  charge 
that  the  said  pretence  is  unfounded,  and  that  the  goods  so  made  by 
said  defendants,  or  the  compounds  of  which  they  are  made,  have 
before  the  completion  of  the  manufacture,  at  some  time,  been  sub- 
jected to  the  treatment  or  process  described  by  C.  G.  as  aforesaid, 
or  some  treatment  or  process  substantially  or  practically  similar  in 
its  nature  and  the  same  in  its  effects. 

And  your  orators  further  show  that,  as  they  are  informed  and 
believe,  the  said  defendants  threaten  to  continue  making  and  selling 
or  making  or  selling,  or  causing  and  procuring  to  be  made  and  sold 


FORMS    IN    EQUITY.  639 

or  made  or  sold,  such  goods  as  are  above  described  in  this  bill  of 
complaint.  And  your  orators  say  that  they  have  been  damaged  and 
injured  by  such  acts  of  the  defendants,  and  apprehend  being  further 
injured  in  future  by  the  repetition  or  continuance  of  such  acts. 

And  your  orators  pray  that  said  several  papers  heretofore  referred 
to  in  this  bill  of  complaint,  and  of  which  copies  are  annexed  as 
aforesaid,  may  be  taken-  as  a  part  of  such  bill,  your  orators  being 
prepared  to  prove  the  execution  of  the  several  agreements  aforesaid 
and  the  issuing  of  said  letters  patent,  and  the  giving  of  the  opinion 
aforesaid  in  N.  J.,  and  being  ready  to  produce  all  such  documents 
and  papers. 

All  which  actions,  doings  and  pretences  are  contrary  to  equity 
and  good  conscience,  and  tend  to  the  manifest  injury  of  your  orators 
in  the  premises. 

In  consideration  whereof,  and  forasmuch  as  your  orators  can 
only  have  adequate  relief  in  this  court,  where  matters  of  this  kind 
are  properly  cognizable  and  relievable :  To  the  end,  therefore,  that 
the  said  The  Beaverly  Rubber.  Company  and  their  confederates, 
when  discovered,  may  upon  their  respective  and  corporal  oaths,  and 
to  the  best  and  utmost  of  their  respective  knowledge,  information 
and  belief,  full,  true  and  perfect  answer  make  to  all  and  singular 
the  matters  aforesaid,  and  that  as  fully  and  particularly  as  if  the 
same  were  now  repeated  and  they  severally  interrogated  thereto, 
and  more  especially  that  they  may  set  forth  particularly  — 

First.  Whether  the  said  suit  was  not  brought  against  the  said  H. 
H.  D.  at  the  time  and  manner  specified  therein  ;  and  whether  it  did 
not  result  as  herein  described. 

Second.  Whether  said  Beaverly  Rubber  Company  has  not  made 
and  sold,  or  caused  and  procured  to  be  made  and  sold,  clothing  or 
other  goods ;  and  if  so,  what  kind  and  amount  of  articles  in  the 
manufacture  of  which,  at  any  time  during  the  process  of  manufac- 
ture, or  in  the  completion  thereof,  there  was  used  or  employed  a 
compound  of  India  rubber  in  which  sulphur  was  present,  to  which 
compound,  or  the  goods  when  made  thereof,  artificial  heat  was  or 
had  been  applied,  so  as  to  produce  in  such  compound  or  goods  the 
effect  of  vulcanization. 

TJiird.  Whether  the  said  defendants  have  made  and  sold,  or  caused 
or  procured  to  be  made  and  sold,  any,  and  if  so,  what  description  or 
quantity  of,  goods  of  vulcanized  rubber,  or  rubber  compounded  with 


640  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

sulphur,  and  subjected  to  the  action  of  artificial  heat,  according  to  the 
process  described  in  the  aforesaid  letters  patent  of  C.  G.,  or  the 
specifications  attached  thereto. 

Fourth.  Whether  the  said  defendants  have,  since  the  said  fifteenth 
day  of  June,  A.  D.  1858,  made  or  sold,  or  caused  or  procured  to  be 
made  or  sold,  any,  and  if  so,  what  description  and  quantity  of,  goods 
made  of  and  from  a  compound  of  India  rubber,  in  which  sulphur 
was  present,  which  compound  had  at  any  time,  or  in  any  form,  been 
subjected  to  artificial  heat,  so  as  to  have  become  vulcanized  within 
the  meaning  of  that  term  as  hereinbefore  defined  and  used,  or  so  as 
to  become  insensible  to  the  action  of  heat  or  cold,  or  prevented  from 
liability  to  decompose  from  the  action  of  essential  oils  or  animal 
perspiration.  And  that  the  defendants  may  answer  the  premises, 
and  that  they  may  be  decreed  to  account  with  your  orators  for  the 
quantity  of  articles  which  they  have  made  in  violation  of  the  said 
letters  patent  or  any  of  the  rights  of  your  orators,  and  to  pay  over 
to  your  orators  such  sum  as  may  be  proper  as  damages  for  such 
infringements  ;  and  that  the  defendants  may  be  perpetually  enjoined 
from  any  further  violation  of  the  rights  of  your  orators,  or  of  either 
of  them  ;  or  that  your  orators  may  have  such  further  and  other  relief 
in  the  premises  as  may  be  consistent  with  equity  and  good  conscience. 

May  it  please  your  honors,  the  premises  considered,  to  grant  unto 
your  orators  the  writ  of  injunction  issuing  out  of  and  under  the  seal 
of  this  honorable  court,  directed  to  the  said  Beaverly  Rubber  Com- 
pany, commanding  and  strictly  enjoining  them,  and  each  of  them, 
not  to  manufacture,  use  or  sell,  or  cause  or  procure  to  be  manufac- 
tured, used  or  sold,  any  articles  of  vulcanized  rubber,  or  any  articles 
made  of  a  compound  of  India  rubber  in  which  sulphur  is  present 
in  any  form  or  degree,  such  compound,  or  the  fabric  made  there- 
from, having  been  at  any  time  subjected  to  the  action  of  artificial 
heat  so  as  to  be  changed  or  affected  in  the  manner  described  in  the 
aforesaid  letters  patent  or  specifications,  or  so  as  to  have  become 
insensible  to  heat  or  cold,  or  not  liable  to  decompose  from  the  action 
of  essential  oils  or  animal  perspiration,  and  from  taking  or  selling 
any  article  made  from  a  compound  which  has  been  at  any  time  so 
vulcanized,  or  affected  or  changed. 

And  also  the  writ  of  subpoena  issuing  out  of  and  under  the  seal 
of  this  honorable  court,  directed  to  the  said  defendants,  command- 
ing them  to  be  and  appear  at  a  certain  day,  and  under  a  certain 


FORMS   IN   EQUITY.  641 

penalty  therein  to  be  expressed  before  this  honorable  court,  to 
answer  the  premises,  and  to  stand  to,  perform  and  abide  by  such 
order,  direction  and  decree,  as  to  your  honors  shall  seem  meet. 
And  your  orators,  etc. 

E.  M.,  by  G.  F.,  Solicitor  for  complainants. 

Form  No.  29. 

Bill  for  an  account  and  an  injunction  against  the  illegal  use  of  a 

trade-mark. 

[Caption  and  title  as  in  Form  No.  1.] 

In  Equity. 

To  the  judges  of  the  circuit  court  of  the  United  States  for  the 
district  of  ,  in  the  circuit,  sitting  as  a  court  of 

equity. 

A.  B.  and  C.  D.,  of  ,  and  citizens  of  the  state  of  , 

bring   this  their  bill  against  E.  F.,  of  ,  and  a  citizen  of 

the    state    of  .     And   thereupon    your    orators,  humbly 

complaining,  show  unto  your  honors  that  they  are  the  assignees 
and  successors  in  the  business  of  L.  &  Co.,  a  firm  which  was  com- 
posed of  and  your  orators,  and  which  firm  was  formerly  en- 
gaged in  the  manufacture  and  sale  of  sewing-machines  in  ; 
and  for  the  period  of  more  than  five  years,  your  orators  and 
their  predecessors  had  been  engaged  in  the  manufacture  and  sale 
of  sewing-machines  at  the  same  place ;  and  that  during  the  whole 
period  of  time  of  such  manufacture  and  sale  by  them,  they  had  ex- 
clusively used,  and  your  orators  are  now  so  using,  and  had  and 
still  have  the  right  to  so  use,  a  certain  trade-mark  for  said  sewing- 
machines,  which  trade-mark  was  printed  on  paper  of  an  ultra- 
marine ground,  in  which  is  represented  a  view  of  the  princess  Pe- 
nelope weaving,  and  the  name  "Penelope,"  which  is  the  essential 
part  of  said  mark,  printed  thereon  ;  and  that  no  person,  firm  or  cor- 
poration, except  the  said  '  and  your  orators,  have  had  at  any 
time  heretofore,  and  none  except  your  orators  now  have,  any  right  to 
use  the  said  trade-mark  or  any  trade-mark  essentially  the  same. 

They  further  show  to  your  honors  that  on  the  said  day 

of  ,  in  the  year  ,  being  entitled  as  aforesaid  to 

the  exclusive  use   of  said  trade-mark,  and  desiring  to  secure  to 
themselves  full  and  lawful  protection  for  the  same  by  due  registra- 
tion thereof  in  the  United  States  Patent-OflSce,  according  to  law, 
41 


642  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

your  orators  did  deposit  in  the  said  Patent-Office  of  the  United 
States  for  registration  their  trade-mark  as  aforesaid  for  sewing- 
machines  ;  and  having  fully  complied  with  all  the  requirements  of 
the  act  of  Congress  in  such  cases  made  and  provided,  the  trade- 
mark aforesaid  was  on  the  day  of  ,  in  the  year 
,  duly  and  lawfully  registered  and  recorded  in  the  said 
United  States  Patent-Office,  with  protection  to  remain  in  force 
for  thirty  years  from  said  date,  all  of  which,  with  an  accurate  copy 
and  description  of  said  trade-mark  and  a  declaration  of  a  member  of 
the  firm  by  which  it  was  registered,  will  more  fully  and  at  large 
appear  from  copies  from  the  Patent- Office,  duly  certified  by  , 
Commissioner  of  Patents,  under  his  seal  of  office,  and  herewith  filed 
as  a  part  of  this  bill,  marked  ;  and  thereupon  protection 
in  the  exclusive  use  of  the  trade-mark  aforesaid  previously  held  and 
enjoyed  by  your  orators  was  secured  to  them  for  the  period  of 
thirty  years  from  said                 day  of                 ,  in  the  year 

Your  orators  further  respectfully  show  unto  your  honors  that 
since  your  orators  have  had  the  exclusive  right  to  u^e  the  said 
trade-mark,  to  wit,  from  the  day  of  ,  in  the  year 

,  to  the  present  time,  the  said  E.  F.,  of  ,  in 

the  state  of  ,  has  been  manufacturing  sewing-machines  in 

the  said  city  of  ,  and   has   been   unlawfully  and  without 

your  orators'  consent  using,  in  the  sale  thereof,  a  trade-mark  sub- 
stantially like,  and  indeed  almost  identical  with,  that  of  your  orators. 
And  your  orators  do  further  show  that  they  hold  and  estimate 
their  said  trade-mark  at  the  price  and  value  of  thousand 

dollars;  but  cannot  with  certainty  state  the  exact  amount  of  their 
loss  and  injury,  suff'ered  by  reason   of  said  wrongful  acts  of  the 
defendant,  but  believe  the  same  to  be  the  full  sum  of 
thousand  dollars,  and  do  so  charge  the  fact. 

To  the  end,  therefore,  that  your  orators  may  obtain  relief  in  the 
premises  in  this  honorable  court,  where  alone  adequate  relief  can 
be  afforded,  they  pray  : 

1st.  That  the  said  E.  F.  may  be  made  a  defendant  to  this  bill, 
and  compelled  to  answer  each  and  every  allegation  thereof,  on 
oath,  as  fully  and  to  the  same  extent  as  if  he  were  directly  and  par- 
ticularly interrogated  as  to  each  allegation. 

2d.  That  he  may  be  compelled  to  render,  before  a  commissioner 
of  this  court,  a  full,  true  and  perfect  account  of  all  profits  of  every 


FORMS    IN    EQUITY.  643 

description  which  he  has  made  or  might  have  made,  by  the  use  of 
the  simulated  trade-mark  aforesaid,  or  by  the  use  of  any  other 
trade-mark  for  sewing-machines  having  thereon  as  a  constituent 
part  thereof  the  word  "Penelope,"  or  a  representation  of  the  prin- 
cess Penelope  weaving,  or  any  trade-mark  having  such  near  re- 
semblance to  that  of  your  orators  as  aforesaid,  as  might  be  calcu- 
lated to  deceive;  and  that  he,  the  said  E.  F.,  be  also  decreed  to  pay 
over  to  them  all  such  profits. 

3d.  That  the  said  commissioner  be  required  to  ascertain  and  re- 
port to  this  court,  also,  what  loss  and  damage  has  been  inflicted 
upon  your  orators  by  reason  of  the  infringement  of  your  orators' 
right,  and  the  interference  aforesaid  with  the  right  of  the  exclusive 
use  of  the  trade-mark  first  above  mentioned ;  and  that  the  said  E. 
F.  be  also  decreed  to  pay  them  such  damages. 

4th.  And  may  it  please  your  honors  to  grant  unto  your  orators 
a  restraining  order  against  the  defendant,  enjoining  and  restrain- 
ing him,  his  clerks,  attorneys,  agents  and  servants,  from  using  the 
simulated-trade-mark  aforesaid,  or  any  other  trade-mark  containing 
the  word  "Penelope,"  or  being  substantially  the  same  with  that  of 
your  orators. 

5th.  And  that  your  orators  may  obtain  the  relief  prayed  for,  and 
all  such  further  or  other  relief  as  the  nature  of  their  case  may  re- 
quire, may  it  please  your  honors  to  grant  to  your  orators  the  writ 
of  subpoena  against  the  said  E.  F.,  etc. 


G.  and  F.,  Solicitors  for  complainants. 
United  States  of  America, 


C.  D. 


ss , 
district  of 

At  the  city  of  ,  in  the  county  of  ,  and  district 

aforesaid,  this  day  of  ,  in  the  year  ,  per- 

sonally appeared  before  me,  ,  U.  S.  commissioner  for  said 

district,  the  above  named  C.  D,,  and  made  oath  that,  the  facts  set 
forth  in  the  foregoing  bill,  so  far  as  they  purport  to  be  stated  as  of 
his  own  knowledge,  are  true;  and  so  far  as  they  purport  to  be 
stated  on  information  and  belief,  he  believes  them  to  be  true. 

Given  under  my  hand  this  day  of  ,  in  the 

year 

T.  J.,  U.  S.  Commissioner  for  district  of 


644         federal  pleading,  practice  and  procedure. 

Form  No.  30. 

Bill  for  a  discovery  and  to  enjoin. 

[Title  as  in  Form  No.  1.] 

In  Equity. 

To  the  honorable  the  judges  of  the  circuit    court  of  the  United 
States  for  the  circuit,  within  and  for  the 

district  of 

A.  B.,  a  citizen  of  the  state  of  [or  a  corporation  duly 

established  under  the  laws  of  the  state  of  ],  brings  this 

his  bill  of  complaint  against  C.  D.,  a  citizen  of  ,  in  said 

district. 

And  thereupon  your  orator  complains  and  says :  That  he  is  a 
citizen  of  the  United  States,  was  the  true  and  original  inventor  of 
a  new  and  useful  improvement  in  ,  which  said  improve- 

ment was  not  known  or  used  by  others  before  the  invention  and 
discovery  thereof  by  him,  who  thereupon  did  apply  to  the  Commis- 
sioner of  Patents  of  the  United  States  for  letters  patent  for  said 
improvement,  and  fully  and  in  all  respects  complied  with  all  the 
requirements  of  the  law  in  that  behalf,  and  especially  made  oath 
that  he  verily  believed  himself  to  be  the  true  inventor  or  discoverer 
of  the  said  improvement,  and  also  paid  into  the  treasury  of  the 
United  States  the  sum  of  thirty  dollars,  and  presented  to  the  Com- 
missioner of  Patents  of  the  United  States  a  petition  setting  forth 
his  desire  to  obtain  an  exclusive  property  in  said  improvement,  and 
praying  that  letters  patent  might  for  that  purpose  be  granted  unto 
him  ;  and  also  delivered  and  filed  in  said  oflBce  of  the  Commissioner 
of  Patents  a  written  description  of  his  said  improvement,  in  such 
full,  clear  and  exact  terms  as  to  enable  any  person  skilled  in  the 
art  with  which  the  said  improvement  is  most  nearly  connected,  to 
make  and  use  the  same ;  which  said  description  was  duly  signed  by 
him,  the  said  A.  B.,  and  attested  by  two  witnesses ;  and  thereupon 
the  said  Commissioner  of  Patents  caused  letters  patent  to  be  made 
out  and  issued  in  the  name  of  the  United  States  of  America,  in 
due  form  of  law  in  all  respects,  bearing  date  the  day  of 

,  in  the  year  one  thousand  eight  hundred  and  , 

whereby  was  granted  unto  the  said  A.  B.,  his  heirs,  administrators 
or  assigns,  for  the  term  of  years  from  the   date  thereof, 


FORMS    IN    EQUITY.  645 

the  full  and  exclusive  right  and  liberty  of  making,  constructing, 
using  and  vending  to  others  to  be  used  the  said  improvement, 
which  is  entitled  in  said  letters  patent,  "A  new  and  useful  improve- 
ment in  ;"  and  the  said  letters  patent  having  been  signed 
by  ,  Secretary  of  the  Interior  of  the  United  States,  and 
countersigned  and  sealed  with  the  seal  of  the  Patent-Office  bv  , 
Commissioner  of  Patents  of  the  United  States,  and  the  same 
having  been  duly  recorded,  were  issued  and  delivered  unto  the  said 
A.  B. 

And  your  orator  further  shows  unto  your  honors  that  the  defend- 
ant, C.  D.,  since  the  day  of  ,  has  been  engaged  in 
making,  using  and  selling  a  large  amount  of  ,  such  as  is 
described  in  said  patents,  and  that  the  defendant  refused  to  pay  to 
your  orator  any  of  the  profits  which  he  made  by  such  unlawful 
manufacture,  use  and  sales,  or  to  desist  from  making,  using  and 
selling  the  same  in  violation  and  infringement  of  your  orator's 
rights,  secured  to  them  as  aforesaid,  and  without  their  consent  or 
allowance. 

All  of  which  actings  and  doings  are  contrary  to  equity  and  good 
conscience,  and  tend  to  the  manifest  injury  of  your  orator  in  the 
premises. 

In  consideration  whereof,  and  forasmuch  as  your  orator  can  only 
have  adequate  relief  in  this  honorable  court,  where  matters  and 
things  of  this  kind  are  made  cognizable  by  statute:  To  the  end, 
therefore,  that  the  said  defendant  may,  if  he  can,  show  why  your 
orator  should  not  have  the  relief  hereby  prayed,  and  may,  upon  his 
corporal  oath  and  according  to  his  best  and  utmost  knowledge,  re- 
membrance, information  and  belief,  full,  true,  direct  and  perfect 
answer  make  to  the  matters  and  things  hereinbefore  stated  and 
charged,  and  to  the  several  interrogatories  hereinafter  numbered  as 
set  forth  by  the  note  hereunder  written,  he  is  required  to  answer ; 
that  is  to  say  : 

1.  Whether  he  has  not  been  engaged  in  selling  the  de- 
scribed in  said  patent. 

2.  Whether  he  has  not  derived  a  large  profit  thereon,  and  if  so, 
how  much. 

And  that  the  said  defendant  may  answer  the  premises,  and  that 
he  may  be  decreed  to  account  with  and  pay  over  to  your  orator, 
tte  profits  which  he  has  or  might  ha>ve  made  by  said  infringement 


646  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

of  said  letters  patent  in  such  unlawful  manufacture,  use  and  sale 
of  : 

May  it  please  your  honors,  the  premises  considered,  to  grant  unto 
your  orator  a  writ  of  injunction,  issuing  out  of  and  under  the  seal 
of  this  honorable  court  (or  issued  by  one  of  your  honors  according 
to  the  form  of  the  statute  in  such  case  made  and  provided),  enjoining 
and  restraining  the  said  C.  D.,  his  clerks,  attorneys,  agents,  servants 
and  workmen,  from  making  any  as  is  described  in  such  his 

letters  patent. 

And  that  your  orators  may  have  such  further  and  other  relief  as 
the  nature  of  the  case  may  require,  and  to  your  honors  seem  meet. 

May  it  please  your  honors  to  grant  unto  your  orator,  not  only 
the  writ  of  injunction  conformable  to  the  prayer  of  this  bill,  but  also 
a  writ  of  subpoena  directed  to  the  said  C.  D.,  commanding  him  on 
a  day  certain,  therein  to  be  named,  to  be  and  appear  in  this  honor- 
able court ;  then  and  there  to  answer  the  premises,  and  to  stand  to, 
perform  and  abide  such  further  order,  direction  and  decree  as  may 
be  made  against 

And  your  orator,  as  in  duty  bound,  will  ever  pray,  etc. 

A.  B.,  Complainant. 

G.  F.,  Solicitor  and  counsel  for  complainant. 

United  States  of  America,      1 

>  ss: 
district  of  .       j 

At  ,  in  the  county  of  ,  and  district  aforesaid, 

on  this  day  of  ,  A.  d.  18     ,  personally  appeared 

the  above  named  A.  B.,  who  being  duly  sworn  according  to  law, 
deposeth  and  saith  that  he  is  the  complainant  in  the  foregoing  bill, 
and  has  read  the  same,  and  knows  the  contents  thereof;  that  the 
said  bill  is  true  of  his  own  knowledge,  except  as  to  those  matters 
which  are  therein  stated  to  be  on  information  and  belief  of  the 
complainant,  and  as  to  those  matters  he  believes  it  to  be  true ;  and 
that  this  deponent  verily  believes  he  was  the  first  and  original  in- 
ventor of  the  improvements  claimed  in  said  letters  patent. 

A.  B. 

T.  J.,  U.  S.  Commissioner  for  the  district  of 


I 


CIRCUIT  COURT  FORMS  IN  EQUITY. 


Form  No.  31. 

Order  for  subpoena. 

At  a  term  of  the  circuit   court  of  the  United  States  of 

America  for  the  district  of  ,  in  the  second  circuit, 

held  at  the  on  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

Present: — The  honorable  (justice  or  judge). 

A.  B.      1 

V.  \  In  equity. 

C.   D.     J 
On  filing  bill  of  complaint  in  this  cause,  and  on  motion  of 

,  complainant's  solicitor :  Ordered,  that  a  writ  of  sub- 
poena do  issue  out  of  and  under  the  seal  of  this  court,  pursuant  to 
the  prayer  of  said  bill,  and  that  this  cause  be  docketed  for  com- 
plainant. 


Form  No.  32. 

Subpoena  to  appear  and  answer  and  return. 

[Title  of  cause.] 

The  President  of  the  United  States  of  America,  to  C.  D.,  G-reeting : 

You  are  hereby  commanded  that  you  personally  appear  before  the 
judges  of  the  circuit  court  of  the  United  States  for  the 
district  of  ,  in  the  second  cir- 

cuit, on  the  ,  to  answer  a  bill  of  complaint 

[l.  s.]  exhibited  against  you  in  the  said  court  by  A.  B.,  and  to 
do  further  and  receive  whatever  said  court  shall  have  con- 
sidered in  that  behalf;  and  this  you  are  not  to  omit  under 
the  penalty  of  two  hundred  and  fifty  dollars. 


648  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

Witness  the  honorable  Chief  Justice  of  the  Supreme 

Court  of  the  United  States,  at  the  city  of  in  said 

district,  the  day  of  eighteen  hundred  and 

Clerk. 

G.  F.,  Solicitor  for  plaintiff. 

Memorandum. — The  defendant  is  to  enter  his  appearance  in  the 
suit  above  mentioned,  in  the  clerk's  office  at  ,  on  or  before 

the  day  at  which  the  above  subpoena  is  returnable,  otherwise  the 
bill  may  be  taken  pro  confesso. 

G.  F.,  Solicitor  for  plaintiff. 

Marshal's  Return. — I  hereby  certify  that  I  served  the  within 
subpoena  on  at  on  the  day  of  ,  A.  D. 

18     ,  and  on  at  on  the  day  of  , 

A.  D.  18  ,  by  delivering  to  and  leaving  with  them,  and  each  of 
them,  a  copy  of  this  subpoena,  and  at  the  same  time  showing  them, 
and  each  of  them,  this  original,  with  the  seal  of  the  court  attached. 

,  Deputy. 

form  of  appointment  to  serve  subp(ena. 
District  of  New  York: 

I  hereby  authorize  and  depute  G.  H.  to  execute  the  annexed 
process,  and  make  due  return  according  to  law. 

E.  F.,  United  States  marshal,  district  of 


■     Form  No.  33. 

Precipe  for  appearance. 

United  States  circuit  court,  district  of 
A.  B.      ^ 

V.  V  In  equity. 

C.   D.     J 

The  clerk  of  this  court  will  please  enter  my  appearance  as  solicit- 
or for  the  defendant  in  the  above  entitled  case. 

Yours,  etc., 

,  Solicitor  for  defendant. 
Dated,  ,  18     . 


circuit  court  forms  in  equity.  649 

Form  No.  34. 

Order  for  appearance. 
United  States  circuit  court,  district  of 

A.  B.       j 

V.  V  In  equity. 

C.  D.      J 

On  filing  precipe  in  this   cause   and  on   motion   of  , 

ordered  that  his  appearance  as  solicitor  for  the  defendant  herein 
be  and  the  same  hereby  is  entered,  and  that  this  cause  be  now 
docketed  for  said  defendant. 


Form  No.  35. 

Motion  for  leave  to  file  supplemental  bill. 
United  States  circuit  court,  district  of 

A.  B.       -j 

V.  V  In  equity. 

0.  D.      J 

The  complainants  in  the  above  entitled  cause  move  the  court, 
upon  the  proposed  supplemental  bill  of  complaint  herewith  filed, 
for  leave  to  file  the  same  as  a  supplemental  bill  of  complaint  in  said 
cause,  and  that  the  same  stand  filed  therein  as  of  the  rule-day  for 
the  first  Monday  of  ,  A.  D.  18      (motion  to  be  heard  on 

said  rule-day  before  his  honor  ,  at         o'clock). 

G.  F.,  Solicitor  for  complainant. 

Dated, 


Form  No.  36. 

Answer;   common  form. 
United  States  circuit  court,  district  of 
A.  B. 


V.  >  In  equity. 

.  D.        1 


C. 

The  answer  of  to  the  bill  of  complaint  of 

complainant. 


650  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

The  defendant,  now  and  at  all  times  hereafter  saving  and  re- 
serving to  himself  all  and  all  manner  of  benefit  and  advantage  of 
exception  to  the  many  errors  and  insufficiencies  in  the  complain- 
ant's said  bill  of  complaint  contained,  for  answer  thereunto,  or  unto 
so  much  or  such  parts  thereof  as  this  defendant  is  advised  is  ma- 
terial for  him  to  make  answer  unto,  answers  and  says  :  [here  state 
the  matters  of  defence.] 

All  of  which  matters  and  things  the  said  defendant  is  ready  to 
aver,  maintain  and  prove,  as  this  honorable  court  shall  direct,  and 
hereby  prays  to  be  hence  dismissed  with  his  reasonable  costs  and 
charges  in  that  behalf  sustained. 

,  Solicitor  and  of  counsel. 

District  of 


COUNTY    OF 

C.  D.,  being  duly  sworn,  says  that  he  is  the  defendant  in 
the  above-entitled  cause,  that  he  has  read  the  foregoing  answer 
and  knows  the  contents  thereof,  and  that  the  same  is  true  of 
his  own  knowledge,  except  as  to  those  matters  therein  stated  on 
information  and  belief,  and  as  to  those  matters  he  believes  it  to  be 
true. 

Sworn  to  before  me  this         day  of  ,  A.  D.  18 


Form  No.  37. 

Order  on  exceptions. 

United  States  circuit  court,  district  of 

A.  B.       \ 

V.  y  In  equity. 

C.  D.       j 

Exceptions  for  insufficiency  having  been   filed  to  the  answer  of 
the  said  on  the  day  of  ,  18     ,  and  the 

said  not  having  submitted  to  answer  said  exceptions,  on 

motion  of  ,  solicitor  for  complainant,  it  is  ordered  that 

said  exceptions  be  set  down  for  a  hearing  on   the  next  rule-day, 
viz.,  the  first  Monday  of  ,  a.  d.  18     ,  before  , 

judge,  at  the  ,  in  the  city  of  ,  at         o'clock. 


CIRCUIT  COURT  FORMS  IN  EQUITY.  651 


Form  No,  38. 

Supplemental  bill  in  a  patent  cause,  stating  the  fact  of  an  extension 
since  the  filing  of  the  original  bill. 

[Title  as  in  Form  No.  1.] 

In  Equity. 

To  the  judges  of  the  circuit  court  of  the   United  States  for  the 
district  of  Massachusetts. 

E.  H.,  Jr.,  of  B.,  in  the  state  of  N.  Y.,  and  a  citizen  of  the  state 
of  N.  Y.,  brings  his  supplemental  bill  against  C.  W.  W.,  a  citizen  of 
the  state  of  Massachusetts. 

And  thereupon  your  orator  complains  and  says  that  he  filed  his 
original  bill  against  the  defendant  in  this  court,  August  9,  1859, 
wherein  he  prayed  for  a  discovery,  account,  payment  of  profits  and 
an  injunction  to  restrain  the  said  defendants  from  infringing  on 
your  orator's  patent,  granted  to  him  by  the  United  States  of 
America,  for  improvement  in  sewing-machines,  dated  September 
10,  1846 ;  and  for  other  relief,  as  stated  in  his  said  original  bill. 

And  your  orator  further  shows  that  since  the  filing  of  his  said 
original  bill,  namely,  on  the  eighth  day  of  September,  in  the  year 
eighteen  hundred  and  sixty,  upon  the  application  of  your  orator, 
and  after  due  proceedings  had  in  all  respects  as  required  by  law, 
the  Commissioner  of  Patents  granted  the  extension  of  said  patent 
for  the  term  of  seven  years  from  and  after  the  expiration  of  the 
first  term  thereof,  viz.,  the  tenth  day  of  September,  1860,  and 
made  a  certificate  of  such  extension  thereon,  and  entered  the  same 
on  record  in  the  Patent-Ofiice  in  due  form  of  law ;  and  thereupon 
the  said  patent  was  renewed  and  extended,  and  now  has  the  same 
effect  in  law  as  though  it  had  been  originally  granted  for  the  term 
of  twenty-one  years,  as  in  and  by  said  certificate,  or  a  certified  copy 
thereof  here  in  court  to  be  produced,  will  more  fully  appear.  Yet 
the  said  defendant,  well  knowing  the  premises,  but  conti'iving  how 
to  injure  your  orator,  and  without  his  consent  or  allowance,  and 
without  right  and  in  violation  of  said  letters  patent  and  your  ora- 
tor's exclusive  rights,  secured  to  him  as  aforesaid  from  September 
1,  1857,  has  made,  used  or  vended,  and  still  does  make,  use  or  vend 


652  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

to  others  to  be  used  in  said  district  and  in  other  parts  of  the  United 
States,  a  large  number  of  sewing-machines  (but  how  many  your 
orator  cannot  state,  but  prays  that  the  defendant  may  discover  and 
set  forth),  each  embracing  substantially  the  improvement  in-sewing- 
machines,  or  a  material  part  thereof,  patented  by  your  orator  as 
aforesaid ;  and  thereby  the  said  defendant  has  infringed,  and  still 
does  infringe  and  cause  your  orator  to  fear  that  in  future  he  will 
infringe,  upon  the  exclusive  rights  and  privileges  intended  to  be 
secured  to  your  orator  in  and  by  said  letters  patent. 

To  the  end,  therefore,  that  the  said  defendant  may,  if  he  can, 
show  why  your  orator  should  not  have  the  relief  herein  and  in  his 
said  original  bill  prayed ;  and  may,  under  oath  and  according  to 
his  best  and  utmost  knowledge,  remembrance,  information  or  be- 
lief, full,  true,  direct  and  perfect  answers  make  to  all  and  singular 
the  premises,  and  more  fully  may  answer,  discover  and  set  forth 
whether,  during  any  and  what  period  of  time  since  September  1, 
1857,  and  where,  he  has  made,  used  or  vended  to  others  to  be  used, 
for  any  and  what  consideration,  any  and  how  many  sewing-ma- 
chines ;  and  whether  or  not  the  same  embraced  the  said  improve- 
ment in  sewing-machines,  or  any  substantial  part  thereof,  patented 
to  your  orator  as  aforesaid,  or  how  the  same  differed  from  your 
orator's  said  patent,  if  at  all. 

And  that  the  said  defendant  may  answer  the  premises,  and  may 
be  decreed  to  account  for  and  pay  over  to  your  orator  all  gains  and 
profits  realized  from  his  unlawful  making,  using  or  vending  of  sew- 
ing-machines embracing  said  improvement  patented  to  and  vested 
in  your  orator  as  aforesaid ;  and  may  be  restrained,  by  an  injunc- 
tion to  be  issued  out  of  this  honorable  court,  or  by  one  of  your 
honors,  according  to  law  in  such  case  provided,  from  making,  using 
or  vending  any  sewing-machines  embracing  said  improvement,  or 
any  substantial  part  thereof,  patented  to  your  orator  as  aforesaid, 
and  that  the  infringing  machines  now  in  possession  or  under  the 
control  of  the  defendant  may  be  delivered  up  to  your  orator  or  be 
destroyed ;  and  for  such  further  and  other  relief  in  the  premises  as 
the  nature  of  the  case  may  require,  and  to  your  honors  may  seem 
meet. 

May  it  please  your  honors,  etc. 

E.  H.,  Jr. 

G.  F.,  Solicitor  for  plaintiff. 


circuit  court  forms  in  equity.  653 

Form  No.  39. 

Bill  for  a  specific  performance — short  form. 

[Caption  and  title  as  in  No.  1,  jurisdictional  clause  as  in  No.  7.] 

Your  orator,  A.  B.,  humbly  complaining,  alleges  and  shows : 

1.  That  on  the  day  of  ,  18  ,  the  defendant,  C.  D., 
was  seized  in  fee  simple  of  real  property  described  as  follows  [here 
describe  the  property]. 

2.  That  on  the  same  day  your  orator  and  the  said  defendant  en- 
tered into  an  agreement  in  writing  under  their  hands  and  seals, 
whereby  your  orator  agreed  to  purchase  and  the  defendant  to  sell 
and  convey  the  real  estate  and  property  aforesaid,  which  agreement 
is  hereto  annexed  and  made  part  of  this  bill,  and  marked  "  Exhibit 
A." 

■  3.  That  on  the  day  of  ,  18     ,  your  orator  ten- 

dered to  the  defendant  the  amount  of  the  purchase  money,  as  pro- 
vided by  the  terms  of  said  agreement,  to  wit  $  ,  and  demanded 
a  deed  of  conveyance  of  said  property  as  provided  by  the  said 
agreement ;  but  the  said  defendant  refused  to  convey  the  same  to 
your  orator,  and  still  neglects  and  refuses  to  convey  the  same,  as 
required  by  the  provisions  of  said  agreement,  although  your  orator 
is  still  ready  and  willing  to  pay  the  said  purchase  money,  and  at  all 
times  has  been  since  the  tender  aforesaid. 

In  consideration  whereof,  and  inasmuch  as  your  orator  can  have 
adequate  relief  only  in  this  court,  and  to  the  end  that  the  said  de- 
fendant may,  if  he  can,  show  why  your  orator  should  not  have  the 
relief  herein  prayed,  and  may  upon  his  corporal  oath,  and  according 
to  the  best  and  utmost  of  his  ability,  remembrance,  information  and 
belief,  full,  true,  direct  and  perfect  answer  make  to  the  matters  and 
things  hereinbefore  stated,  and  more  especially  answer  the  several 
interrogatories  hereinafter  numbered  ;  that  is  to  say  : 

1.  Whether  he  was  not  seized  in  fee  simple  of  the  real  property 
described  in  paragraph  one  of  this  bill,  at  the  time  mentioned 
therein. 

2.  Whether  he  did  not  execute  the  agreement  referred  to  in  the 
second  paragraph  of  this  bill. 

3.  Whether  your  orator  did  not  tender  to  him  $  ,  at  the 
time  mentioned  in  the  third  paragraph  of  this  bill,  and  at  the  same 


654  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

time  demand  a  deed  of  conveyance  of  the  land  described  in  this 
bill. 

4.  Whether  he  did  not,  at  time  of  said  tender  as  aforesaid,  refuse 
to  convey  the  aforesaid  real  property  to  your  orator. 

5.  Whether  he  has  ever  conveyed  said  real  property  to  your 
orator. 

6.  Whether  he  still  hold  the  title  in  fee  simple  to  said  real  prop- 
erty. 

Your  orator  prays  that  the  defendant  may  be  compelled  to  an- 
swer each  and  every  allegation  in  this  bill,  and  the  interrogatories 
annexed  thereto ;  that  this  honorable  court  may  grant  unto  your 
orator  a  restraining  order  or  injunction  against  the  defendant,  re- 
straining him  from  conveying  or  incumbering  said  real  property  or 
any  part  thereof  until  the  further  order  of  the  court ;  that  your 
orator  may  have  the  writ  of  subpoena  against  the  said  defendant, 
and  a  decree  against  him  that  he  execute  a  good  and  suflBcient  con- 
veyance of  said  real  estate  to  your  orator. 

A.  B.,  by  F.  G.  his  solicitor. 

[Sworn  to  in  the  usual  manner.] 


Form  No.  40. 


Second  supplemental  bill  in  a  patent  cause,  stating  that  since  the 
filing  the  first  supplemental  bill  the  patent  had  been  surrendered, 
etc.,  and  a  ne^v  patent  issued. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

To  the  judges  of  the  circuit  court  of  the  United  States  for  the 
district  of  Massachusetts. 

E.  H.,  Jr.,  of  B.j  in  the  state  of  N.  Y,,  and  a  citizen  of  the  state 
of  N.  Y.,  brings  this  his  second  supplemental  bill  against  C.  W.  W., 
of  B.,  in  the  district  of  Massachusetts,  sewing-machine  maker,  and 
a  citizen  of  the  state  of  Massachusetts. 

And  thereupon  your  orator  complains  and  says  that  he  filed  his 
original  bill  against  the   said  defendant  in  this  court,  August  9, 


CIRCUIT   COURT   FORMS    IN    EQUITY.  655 

1859,  and  his  first  supplemental  bill  November  5,  1860 ;  wherein 
he  prayed  for  a  discovery,  account,  payment  of  profits,  and  an  in- 
junction to  restrain  the  said  defendant  from  infringing  your  orator's 
patent,  granted  to  him  by  the  United  States  of  America,  for  im- 
provement in  sewing-machines,  dated  September  10,  1846 ;  and 
for  other  relief  as  stated  in  his  original  and  supplemental  bill. 

And  your  orator  further  shows  that  since  the  filing  of  his  said 
original  bill,  namely  on  the  eighth  day  of  September,  in  the  year 
eighteen  hundred  and  sixty,  upon  the  application  of  your  orator, 
and  after  due  proceedings  had  in  all  respects  as  required  by  law, 
the  Commissioner  of  Patents  granted  the  extension  of  said  patent 
for  the  term  of  seven  years  from  and  after  the  expiration  of  the 
first  term,  viz.,  the  tenth  day  of  September,  1860,  and  made  a 
certificate  of  such  extension  thereon,  and  entered  the  same  on  the 
record  in  the  Patent-Ofiice  in  due  form  of  law,  and  thereupon  the 
said  patent  was  renewed  and  extended,  and  now  has  the  same  eff'ect 
in  law  as  though  it  had  been  originally  granted  for  the  term  of 
twenty-one  years,  as  in  and  by  said  certificate  or  certified  copy 
thereof,  here  in  court  to  be  produced,  will  more  fully  appear,  and 
thereupon  his  first  supplemental  bill  is  filed  as  aforesaid. 

And  your  orator  further  shows  that  since  the  filing  of  his  first 
supplemental  bill,  namely,  on  the  nineteenth  day  of  March,  in  the 
year  eighteen  hundred  and  sixty-one,  his  aforesaid  patent  having 
been  amended  and  cancelled  on  account  of  a  defective  specification, 
a  new  patent  was  duly  issued  to  him  for  the  same  invention,  in  ac- 
cordance with  his  corrected  description  and  specification,  whereby 
was  granted  and  secured  to  your  orator,  his  heirs,  administrators 
or  assigns,  for  said  term  of  twenty-one  years  from  September  10, 
1846,  the  full  and  exclusive  right  and  liberty  of  making,  construct- 
ing, using  or  vending  to  others  to  be  used  the  said  improvement 
in  sewing-machines  therein  specified  and  claimed,  as  in  and  by  said 
reissued  letters  patent,  or  a  certified  copy  thereof,  here  in  court  to 
be  produced,  will  more  fully  appear. 

And  your  orator  further  shows  that  since  the  extension  of  the 
said  patent,  he  has  himself  become  a  manufacturer  of  sewing-ma- 
chines, and  has  licensed  many  other  parties  to  manufacture  and  sell 
sewing-machines,  embracing  his  said  patented  invention ;  and  that 
your  orator  and  his  licensees  have  made  very  large  investments  for 
the  purpose  of  fully  supplying  the  market  with  the  best  sewing-ma- 


656  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

chines,  and  that  the  continued  infringement  of  your  orator's  said 
patent,  committed  by  the  defendant,  has  caused  and  is  still  causing 
irreparable  injury  to  your  orator's  said  rights  and  business,  and  to 
the  investments  and  business  of  your  orator's  licensees  under  his 
said  patent ;  yet  the  said  defendant,  well  knowing  the  premises,  but 
contriving  how  to  injure  your  orator,  and  without  his  consent  or 
allowance,  and  without  right,  and  in  violation  of  said  letters  patent, 
and  your  orator's  exclusive  rights  secured  to  him  as  aforesaid,  has 
continued  since  the  reissue  aforesaid,  as  well  as  up  to  that  time,  to 
make  and  vend,  and  still  does  make  and  vend  to  others  to  be  used 
in  said  district,  and  in  other  parts  of  the  United  States,  a  large 
number  of  sewing-machines,  but  how  many  your  orator  cannot 
state,  but  prays  that  the  defendant  may  discover  and  set  forth  each, 
embracing  substantially  the  improvement  in  sewing-machines,  or  a 
material  part  thereof,  patented  to  your  orator  as  aforesaid,  and 
thereby  the  said  defendant  has  infringed,  and  still  does  infringe, 
and  cause  your  orator  to  fear  that  in  future  he  will  infringe,  upon 
the  exclusive  rights  and  privileges  intended  to  be  secured  to  your 
orator  by  his  said  letters  patent. 

To  the  end,  therefore,  that  the  said  defendant  may,  if  he  can, 
show  why  your  orator  should  not  have  the  relief  herein  and  in  his 
said  original  bill  prayed,  and  may,  under  oath,  and  according  to 
his  best  and  utmost  knowledge,  remembrance,  information  or  belief, 
full,  true,  direct  and  perfect  answer  make  to  all  and  singular  the 
premises,  and  more  especially  may  answer,  discover  and  set  forth 
whether  during  any  and  what  period  of  time,  since  September  1, 
1857,  and  where,  he  has  made  any  and  how  many  sewing-machines, 
and  whether  or  not  the  same  embraced  the  said  improvement  in 
sewing-machines,  or  any  substantial  part  thereof,  patented  to  your 
orator  aforesaid,  or  how  the  same  differed  from  your  orator's  said 
patent,  if  at  all. 

And  that  the  said  defendant  may  answer  the  premises,  and  may 
be  decreed  to  account  for  and  pay  over  to  your  orator  all  gains  and 
profits  realized  from  his  unlawful  making,  using  or  vending  of 
sewing-machines  embracing  said  improvement  patented  to  and 
vested  in  your  orator  as  aforesaid ;  and  may  be  restrained  by  an 
injunction  to  be  issued  out  of  this  honorable  court,  or  by  one  of 
your  honors,  according  to  law  in  such  case  provided,  from  making, 
using  or  vending  any  sewing-machines   embracing  said   improve- 


CIRCUIT  COURT  FORMS  IN  EQUITY.  657 

ment,  or  any  substantial  part  thereof,  patented  to  your  orator  as 
aforesaid,  and  that  the  infringing  machines  now  in  the  possession 
or  under  control  of  the  defendant  may  be  delivered  up  to  your 
orator  or  destroyed ;  and  for  such  further  and  other  relief  in  the 
premises  as  the  nature  of  the  case  may  require,  and  to  your  honors 
may  seem  meet. 

May  it  please  your  honors,  etc.  E.  H.,  Jr. 

B.  R.  C,  of  counsel  for  plaintiff. 


Form  No.  41. 

Amendment  to  a  bill. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

Amendment  to  a  bill  of  complaint  in  this  cause,  made  pursuant  to 
an  order  of  the  court,  entered  on  the  day  of  , 

A.  D.  18       . 

First.  In  the  third  line  of  the  second  folio  of  the  bill,  after  the 
word  "and,"  interline,  "to  wit,  on  or  about  the  first  day  of  Jan- 
uary, A.  D.  1870." 

Second.  After  the  word  "time,"  in  the  tenth  line  of  the  sixth 
folio,  insert  the  words  following : 

[Here  insert  the  additional  matter  proposed.] 

Third.  Strike  out  the  words  "did  convey,"  in  the  fourth  line  of 
the  eleventh  folio,  and  insert  in  lieu  thereof  the  following:  "was 
about  to  convey." 

Fourth.  Add  the  name  of  "  E.  F.,  of,  etc."  as  a  defendant  in  the 
second  line  of  the  fourteenth  folio,  after  the  word  "and."^ 

G.  F.,  Solicitor  for  complainant. 

^  An  amended  bill  should  state  no  by  interlineations  and  erasures  in  the 

more  of  the  original  bill  than  is  neces-  original  bill,  but  by  filing  the  same 

sary  to  introduce  and  make  intelli-  on  a  separate  paper.     The  practice  of 

gible    the   new   matter  ;    nor   should  amending  pleadings  by  erasures  and 

such  amendment  be  incorporated  in  interlineations  ought  not  to  be  toler- 

the  old  bill,  but  be  by  separate  bill,  ated  by  the  courts.    A  paper  thus  dis- 

And  amendments  should  not  be  made  figured  will  be  stricken  from  the  tiles. 


42 


658         federal  pleading,  practice  and  procedure. 

Form  No.  42. 

General  demurrer  to  bilL 

[Title  as  in  Form  No.  1.] 

In  Equity. 

The  demurrer  of  C.  D.,  defendant,  to  the  bill  of  complaint  of  A. 
B.,  the  above-named  defendant  [or,  the  joint  and  several  de- 
murrer of  A.  B.  and  C.  D.,  the  above-named  defendants,  to 
the,  etc.] 
This  defendant,  by  protestation,  not  confessing  any  or  all  of  the 
matters  and  things  in  the  plaintiff's  bill  of  complaint  contained  to 
be  true,  in  such  manner  and  form  as  the  same  is  therein  set  forth 
and  alleged,  doth  demur  to  said  bill,  and  for  cause  of  demurrer 
showeth  that,  etc. 

[Here  set  forth  the  cause  of  the  demurrer.] 
Wherefore,  and  for  divers  other  good  causes  of  demurrer  appear- 
ing in  the  said  bill,  the  defendant  doth  demur  thereto,  and  humbly 
demands  the  judgment  of  this  court  whether  he  shall  be  compelled 
to  make  any  further  or  other  answer  to  the  said  bill ;  and  prays  to 
be  hence  dismissed  with  his  costs  and  charges  in  this  behalf  most 
wrongfully  sustained. 

G.  F.,  Counsel  for  defendant. 


Form  No.  43. 

Demurrer  for  vrant  of  equity. 

[Title  and  caption  as  in  Form  No.   1,   and  commencement  as  in  the  last 

form.] 

That  the  plaintiff  hath  not  in  and  for  his  said  bill  made  or  stated 
such  a  case  as  entitles  him  in  a  court  of  equity  to  any  discovery 
from  this  defendant  [or,  these  defendants,  or  either  of  them],  or  to 
any  relief  against  him  [or,  them  or  either  of  them]  as  to  the  matters 
contained  in  the  said  bill  or  any  of  such  matters.     Wherefore,  etc. 

[Or  thus.']  That  the  said  bill  doth  not  contain  any  matter  of 
equity  whereon  this  court  can  ground  any  decree,  or  give  to  the 
plaintiff  any  relief  against  this  defendant  [or,  these  defendants,  or 
either  of  them]. 


circuit  court  forms  in  equity.  659 

Form  No.  44. 

Another  form  of  demurrer. 

[Title  and  commencement  as  in  Form  No.  42.] 

The  said  C.  D.  says  that  the  plaintiff  is  not  entitled  upon  said 
bill  to  the  relief  he  prays  for,  because  he  had  a  plain  and  adequate 
remedy  at  law,  and  because,  etc. 

C.  D.,  by  F.  R.,  his  solicitor. 


Form  No.  45. 

Demurrer  for  Multifariousness. 

[Title  as  in  Form  No.  1.] 

In  Equity. 

The  demurrer  of,  etc. 

This  defendant  by  protestation,  etc.,  doth  demur,  and  for  cause 
of  demurrer  showeth  that  it  appears  by  the  said  bill  that  the  same 
is  exhibited  against  this  defendant  and  the  several  other  persons 
therein  named  as  defendants  thereto,  for  distinct  matters  and  causes, 
in  several  whereof,  as  appears  by  the  said  bill,  this  defendant  is  not 
in  any  manner  interested  or  concerned,  and  that  the  said  bill  is 
altogether  multifarious.     Wherefore,  etc. 


Form  No.  46. 

Demurrer  on  the  ground  of  the  Statute  of  Frauds. 

[Title  and  commencement  as  in  Form  No.  42.] 

That  it  appears  by  the  said  bill  that  neither  the  promise  or  the 
contract  which  is  alleged  by  the  said  bill,  and  of  which  the  plaintiff 
by  the  said  bill  seeks  to  have  the  benefit,  nor  any  memorandum  or 
note  thereof,  was  ever  reduced  into  writing  or  signed  by  this  de- 
fendant [or,  these  defendants  or  either  of  them],  or  any  person 
authorized  thereunto,  within  the  meaning  of  the  statute  [here  desig- 
nate the  statute]  for  the  prevention  of  frauds  and  perjuries.  Where- 
fore, etc. 


660     PEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 
CERTIFICATE  OF  COUNSEL. 

I  hereby  certify  that  I  am  solicitor  and  of  counsel  for  the  de- 
fendant in  the  above-entitled  cause,  and  that  in  my  opinion  the 
foregoing  demurrer  of  C.  D.,  defendant  to  the  bill  of  complaint  of 
A.  B.,  complainant,  is  well  founded  in  point  of  law  and  proper  to 
be  filed  in  the  above  cause. 

G.  F.,  Solicitor  and  of  counsel  for  defendant. 

verification  by  defendant. 

United  States  of  America, 


ss  * 

district  of 

C.  D.,  being  duly  sworn,  deposes  and  says  that  the  foregoing 
demurrer  is  not  interposed  to  delay  the  cause  or  any  proceedings 
therein. 

CD. 

Subscribed  and  sworn  to,  etc. 

J.  K.,  Commissioner. 


Form  No.  47. 

Plea;   Certificate;    Verification. 

[Caption  and  title  as  in  No.  1.] 

The  plea  of  C.  D.,  defendant  to  the  bill  of  complaint.  A.  B., 
complainant. 
This  defendant  by  protestation,  not  confessing  or  acknowledging 
all  or  any  of  the  matters  and  things  in  the  complainant's  bill  men- 
tioned to  be  true  in  such  manner  and  form  as  the  same  are  therein 
and  thereby  set  forth  and  alleged,  doth  plead  thereto,  and  for  plea 
says  that  the  court  ought  not  to  take  cognizance  of  or  sustain  the 
aforesaid  action,  because  the  plaintiff  was  at  the  time  of  the  com- 
mencement of  said  suit  a  citizen  of  the  state  of  [naming  the  state], 
and  the  defendant  at  the  time  of  the  commencement  of  said  suit 
was  a  citizen  of  the  same  state  of  [here  name  the  state],  and  he 
pleads  these  facts  to  the  whole  of  said  bill,  and  demands  judgment 
of  this  honorable  court  whether  he  ought  to  be  compelled  to  make 
any  answer  to  the  said  bill  of  complaint ;  and  prays  that  he  be 


CIRCUIT   COURT   FORMS    IN    EQUITY.  661 

hence  dismissed  with  his  reasonable  costs  in  this  behalf  most  wrong- 
fully sustained. 

G.  F.,  Solicitor  and  of  counsel  for  defendant. 


CERTIFICATE  OF  COUNSEL. 

I  hereby  certify  that  I  am  solicitor  and  of  counsel  for  the  defend- 
ant in  the  foregoing  cause,  and  that  in  my  opinion  the  foregoing 
plea  is  well  founded  in  point  of  law. 

G.  F.,  Solicitor  and  of  counsel  for  defendant. 

verification  by  the  defendant. 
United  States  of  America, 


ss  * 
district  of  ■      ' 

C.  D.,  being  duly  sworn,  deposes  and  says  that  he  is  the  defend- 
ant named  in  the  foregoing  plea ;  that  he  has  read  the  same  [or 
heard  the  same  read],  and  knows  the  contents  thereof,  and  that  the 
same  is  true  of  his  own  knowledge. 

C.  D. 

Subscribed  and  sworn  to  before  me  this         day  of  ,  18     . 

J.  K.,  Commissioner. 


verification  by  defendant  corporation. 

United  States  of  America, 
district  of 


JCA,       "I 


I,  E.  F.,  being  duly  sworn,  depose  and  say  that  I  am  the  president 
[or  other  officer,  naming  the  same]  of  the  [naming  the  corporation], 
defendant  in  the  above  cause ;  that  I  have  read  the  foregoing  plea, 
and  know  the  contents  thereof,  and  the  same  is  true,  as  I  verily 
believe. 

E.  F. 

[Subscribed  and  sworn  to  as  above.] 

The  certificate  of  counsel  in  such  a  case  would  be  the  same  as  in 
other  cases.     See  above. 


federal  pleading,  practice  and  procedure. 
Form  No.  48. 

General  frame  of  an  answer  to  a  bill. 

[Title  as  in  Form  No.  1.] 

In  Equity. 

The  answer  of  C.  D.,  defendant  to  the  bill  of  complaint  of  A.  B., 
complainant. 

This  defendant,  now  and  all  times  hereafter  saving  and  reserving 
unto  himself  all  benefit  and  advantage  of  exception  which  can  or 
may  be  had  or  taken  to  the  many  errors,  uncertainties  and  other 
imperfections  in  the  said  bill  contained,  for  answer  thereunto,  or  to 
so  much  and  such  parts  thereof  as  this  defendant  is  advised  it  is 
material  or  necessary  for  him  to  make  answer  unto,  answering, 
says,  etc.     This  defendant  admits,  etc. 

This  defendant,  further  answering,  denies,  etc.  [and  so  on  through 
the  whole  bill,  admit  or  deny  every  material  allegation,  and  set  up 
any  matter  in  defence  or  avoidance,  as  the  nature  of  the  case  may 
require,  and  conclude  as  follows :] 

And  the  defendant  denies  all  and  all  manner  of  unlawful  combi- 
nation and  confederacy,  wherewith  he  is  by  the  said  bill  charged, 
without  this,  that  any  other  matter,  cause  or  thing  in  the  com- 
plainant's said  bill  of  complaint  contained,  material  or  necessary 
for  this  defendant  to  make  answer  unto,  and  not  herein  and  here- 
by well  and  suflSciently  answered,  confessed,  traversed  and  avoided 
or  denied,  is  true,  to  the  knowledge  or  belief  of  this  defendant; 
all  which  matters  and  things  this  defendant  is  ready  and  willing  to 
aver,  maintain  and  prove,  as  this  honorable  court  shall  direct;  and 
prays  to  be  hence  dismissed  with  his  reasonable  costs  and  charges 
in  this  behalf  most  wrongfully  sustained. 

G.  F.,  Solicitor  for  defendant. 


circuit  court  forms  in  eqtjity.  663 

Form  No.  49. 

Exceptions  to  answer  for  insufficiency. 

In  the  court  of  the  United  States  for  the 

district  of  ,  term,  18 

A.  B.     "j 

V.  V  In  chancery. 

C.  D.     J 
Exceptions  taken  by  the  complainant  to  the  insuflScfent  answer  of 
the  defendant,  C.  D.,  to  the  complainant's  bill  of  complaint. 

First.  For  that  the  defendant,  C.  D.,  has  not,  to  the  best  and 
utmost  of  his  knowledge,  remembrance,  information  and  belief, 
answered  and  set  forth  whether,  etc.  [Here  set  out  the  ground  of 
exception.] 

Second.  For  that  the  defendant  has  not,  in  manner  aforesaid,  an- 
swered and  set  forth  whether,  etc.  [and  so  on,  set  out  the  grounds 
of  each  exception  as  the  case  may  require,  using  the  words  of  the 
interrogatory  or  matter  not  answered.] 

In  all  which  particulars  the  complainant  excepts  to  the  answer 
of  t'ae  defendant  C.  D.,  as  evasive,  imperfect  and  insufficient,  and 
pray?  that  the  defendant  C.  D.  may  be  compelled  to  put  in  a  full 
and  sufficient  answer  thereto. 

G.  F.,  Solicitor  for  complainant. 


Form  No.  50. 

Plea  to  part  and  ans-wer  to  the  residue  of  bill. 

[Title  as  in  Form  No.  1.] 

In  Equity. 

The  plefof  ,  defendant,  to  part,  and  his  answer  to  the  resi- 

dueof  the  bill  of  complaint  of  ,  complainant. 

This  defendant,  to  all  the  relief  sought  by  the  said  bill,  and  also 
to  all  thediscovery  thereby  sought,  except  the  discovery  sought  by 
or  in  respct  of  so  much  of  the  said  bill  as  prays  that  this  defend- 
ant may  mswer  and  set  forth  whether,  etc.  [here  the  language  of 
the  interrcgatories  which  it  is  necessary  to  answer  must  be  intro- 
duced], ths  defendant  does  plead  in  bar,  and  for  plea  says,  etc. 
[Here  set  cut  the  plea.] 


661  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

All  of  which  matters  and  things  this  defendant  does  aver  to  be 
true,  and  does  plead  the  same  in  bar  to  the  whole  of  the  said  bill, 
except  such  part  of  the  discovery  thereby  sought  as  aforesaid ;  and 
this  defendant  prays  the  judgment  of  this  honorable  court,  whether 
he  ought  to  be  compelled  to  make  any  further  or  other  answer  to 
so  much  of  the  said  bill  as  is  hereby  pleaded  to,  and  he  prays  to  be 
hence  dismissed  with  his  costs. 

And  for  answer  to  such  parts  of  the  said  bill  as  are  not  pleaded 
to,  this  defendant  says  that,  etc.  [Here  insert  answer  as  in  pre- 
cedents, under  the  head  of  answers.] 

,  Solicitor  for  defendant. 

(For  form  of  certificate  of  counsel  and  verification,  see  No.  47.) 


Form  No.  51. 

Plea  of  former  suit  pending. 

[Title  as  in  Form  No.  1.] 
Tn  Equity. 

For  plea,  the    defendant  says  that   heretofore,  to   wit,  or  the 
day  of  ,  the   said  present  complainant  exhibited 

his  bill  of  complaint  in  this  honorable  court  against  this  defend- 
ant and  one  E.  F.,  for  an  account  of  the  moneys  raised  by 
the  sale  of  the  goods  and  property  in  the  complainant's  present 
bill  mentioned,  and  claiming  such  shares  and  proportions  tiereof, 
and  such  rights  and  interests  therein,  as  he  now  claims  by  his 
present  bill ;  and  praying  relief  against  this  defendant  in  the  same 
manner  and  for  the  same  matters,  and  to  the  same  effect  as  the 
complainant  now  prays  by  his  said  present  bill ;  and  this  dfendant 
and  said  E.  F.  appeared  and  put  in  their  answer  to  the  sail  former 
bill,  and  the  complainant  replied  thereto ;  and  the  said  foimer  bill, 
and  the  several  proceedings  in  the  said  former  cause,  noiv  remain 
depending  and  as  of  record  in  this  honorable  court,  the  slid  cause 
being  yet  undetermined  and  undismissed. 

Wherefore,  etc. 

By  ,  Solicitor  for  de'endant. 

(For  form  of  certificate  of  counsel  and  verification,  se  No.  47.) 


circuit  court  forms  in  equity.  665 

Form  No.  52. 

Common  form  of  replication. 

[Title  as  in  Form  No.  1.] 

In  Equity. 

The  replication  of  A.  B.,  the  above-named  complainant,  to  the 
answer  of  C.  D.,  defendant. 
This  repliant,  saving  and  reserving  to  himself  now  and  at  all  times 
hereafter  all  and  all  manner  of  benefits  and  advantage  of  excep- 
tion which  may  be  had  and  taken  to  the  manifold  insufficiencies  of 
the  said  answer,  for  replication  thereto  says  that  he  will  aver,  main- 
tain and  prove  his  bill  of  complaint  to  be  true,  certain  and  sufficient 
in  the  law  to  be  answered  unto ;  and  that  said  answer  of  the  said 
defendant  is  uncertain,  untrue  and  insufficient  to  be  replied  unto  by 
repliant  without  this ;  that  any  other  matter  or  thing  whatsoever, 
in  the  said  answer  contained,  material  or  effectual  in  the  law  to  be 
replied  unto,  and  not  herein  and  hereby  well  and  sufficiently  replied 
unto,  confessed  and  avoided,  traversed  or  denied,  is  true ;  all  which 
matters  and  things  the  repliant  is  and  will  be  ready  to  aver,  main- 
tain and  prove,  as  this  honorable  court  shall  direct,  and  humbly 
prays  as  in  and  by  his  said  bill  he  hath  already  prayed. 

G.  F.,  Solicitor  for  complainant. 


Form  No.  53. 

Order  of  reference  to  the  master. 

[Title  as  in  Form  No.  1.] 

In  Equity. 

This  cause  having  come  on  to  be  heard  upon  the  motion  of  the 
complainant  [or  defendant]  for,  etc.  [here  insert  the  nature  of  the 
motion,  and  let  the  recital  agree  with  the  facts],  the  bill  of  com- 
plaint herein,  the  answer  of  the  defendant  thereto,  the  replication 
of  the  complainant  to  such  answer,  and  the  proofs  taken  in  the 
cause,  and  having  been  argued  by  counsel  for  the  respective  parties  ; 

Now,  therefore,  on  consideration  thereof,  it  is  ordered,  adjudged 
and  decreed,  and  the  court  doth  hereby  order,  adjudge  and  decree 
as  follows,  viz. :  That  this  cause  be  and  the  same  is  hereby  referred 
to  the  master  in  chancery  of  this  court,  to  inquire  and  state  to  the 


666  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

court,  etc.  [here  insert  the  subject-matter  of  reference] ;  and  for 
the  better  discovery  of  matter  aforesaid  the  parties  respectively  are 
to  produce  before  the  said  master  all  deeds,  books,  papers  and 
writings  in  their  possession,  custody  or  power  relating  thereto,  and 
are  to  be  examined  upon  oath  and  interrogatories  as  the  said  masters 
shall  direct ;  and  the  said  master  will  cause  to  come  before  him  all 
such  witnesses  whose  testimony  he  may  deem  necessary,  and  ex- 
amine them  upon  oath  and  interrogatories  touching  the  matters 
aforesaid ;  and  the  said  master  will  make  his  report  thereon  with 
all  convenient  speed ;  and  if  any  special  questions  shall  arise,  the 
said  master  is  at  liberty  to  state  the  same  to  the  court. 


Form  No.  54. 

Order  of  reference  to  master  to  report,  etc. 

D.  L.,  plaintiff,  '\ 

V.  -  V  In  equity. 

The  Columbia  Ins.  Co.,  et  al.,  defendants.  J 

Whereas  it  has  been  made  to  appear  to  this  court,  by  the  answer 
of  the  said  defendants  or  otherwise,  that  at  the  time  of  the  service 
of  the  subpoena  and  injunction  of  the  said  H.  E.  in  this  case,  he 
held  in  his  hands  certain  funds  and  promissory  notes  of  the  said 
Columbia  Insurance  Company  as  their  agent ;  and  that  the  said  H. 
E.  claims  to  have  a  lien  thereon  for  a  balance  of  account  claimed 
by  him  to  be  due  him  by  said  company,  and  also  for  the  reasonable 
expenses  and  counsel  fees  to  which  he  has  been  subjected  in  answer 
to  this  and  other  suits  against  the  said  company,  and  other  liens  : 
This  court  doth  order  that  this  cause  be  referred  to  G.  S.  H.,  Esq., 
as  a  master  in  chancery,  who,  after  due  notice  and  hearing  of  the 
parties,  shall  report  to  this  court  what  amount  of  funds  and  promis- 
sory notes  or  other  choses  in  action  belonging  to  said  company 
were- at  the  time  of  said  subpoena  and  injunction,  and  what  now  are, 
in  the  hands  or  possession  of  said  H.  E. ;  also  what  balance  of 
account,  if  any,  was  due  said  H.  E.  from  said  company  at  the  date 
of  said  service ;  what  reasonable  sum  for  counsel  fees  or  other  ex- 
penses the  said  H.  E.  has  paid,  or  is  liable  to  pay  or  be  at,  in  an- 
swering this  and  other  suits  now  pending  against  the  said  company; 


CIRCUIT  COURT  FORMS  IN  EQUITY.  667 

and  also  any  other  claims  or  demands  which  the  said  H.  E.  may 
have  or  claim  to  hold  as  a  lien  upon  said  funds  or  property  of  the 
Columbia  Insurance  Company  aforesaid. 

By  the  court.  G.  C.  W.,  Clerk. 


Form  No.  55. 


Order  of  reference  to  master ;  account ;  rests ;  state  special   circum- 
stances, etc. 

[Title  of  cause  as  in  Form  No.  1.] 
In  Equity. 

On  reading  the  pleadings  in  the  above  cause,  and  hearing  the 
counsel  of  the  respective  parties,  and  on  consideration  thereof,  it  is 
ordered  that  it  be  referred  to  E.  W.,  Esq.,  as  a  master  of  this  court, 
to  take  an  account  of  the  dealings  and  transactions  of  and  between 
the  said  parties  under  the  several  agreements  set  forth  in  the  plain- 
tiff's bill,  and  to  state  what,  upon  the  balance  of  said  account,  shall 
appear  to  be  due  from  either  party  to  the  other. 

And  the  said  master  is  required  to  make  rests  in  said  accounts, 
and  state  whether  any  and  what  balances  were  due  from  either  and 
which  of  said  parties  to  the  other  on  the  first  day  of  April,  A.  d. 
1850,  as  well  as  at  the  period  at  which  the  plaintiff  in  his  said  bill 
alleges  said  mutual  accounts  to  have  terminated. 

And  said  master  is  authorized  to  state  and  report  to  the  court 
any  special  circumstances  needful  for  explaining  said  account  in  his 
report  thereof,  and  the  evidence  as  to  the  time  when  said  mutual 
account  did  terminate. 

And  for  the  better  taking  of  said  accounts,  etc.,  the  parties  are 
required  to  produce,  etc.,  and  to  be  examined  before  said  master 
upon  oath,  either  upon  interrogatories  or  viva  voce,  or  by  each  of 
said  modes,  as  the  said  master  may  direct. 

And  all  equities  and  further  directions  are  reserved  until  the 
coming  in  of  said  report. 

And  the  parties  are  at  liberty  to  apply  to  the  court  as  occasion 
may  require.^ 

By  the  court.  H.  W.  F.,  Clerk. 

1  Foster  w.  Goddard,  1  Clifi".  158  (1858). 


668        federal  pleading,  practice  and  procedure. 

Form  No.  56. 

Master's  report. 
[Caption  and  title  of  cause  as  in  Form  No.  1.] 
term,  18     .     In  Equity. 

To  the  honorable  ,  judge  of  the 

In  pursuance  of  an  order  of  this  court,  made  in  the  above-en- 
titled cause  on  the  day  of  ,  18  ,  whereby  it  was 
referred  to  the  master  in  chancery  [or  a  special  master  in  chancery] 
of  this  court,  to  take  the  proofs  of  the  respective  parties,  and  re- 
port the  same  [with  his  conclusions  of  law  thereon]  to  the  court ; 
I,  the  said  master  in  chancery  [or  the  special  master  appointed 
therefor  by  the  court],  do  hereby  report  that,  having  first  given  a 
written  notice  to  said  parties  respectively  of  the  time  and  place 
when  and  where  the  said  testimony  would  be  taken,  and  caused  to 
come  before  me  all  such  witnesses  as  the  respective  parties  desired 
or  made  known  to  me,  and  having  been  attended  by  the  solicitor  of 
the  respective  parties,  I  did,  on  the  day  of  ,  18  , 
at  ,  in  ,  proceed  to  take  the  proof  of  the  respective 
parties ;  and  the  several  witnesses  attending  having  been  severally 
sworn  and  examined  by  me,  I  reduced  their  testimony  to  writing, 
and  have  attached  the  same  hereto,  and  made  the  same  a  part  of 
this  report. 

I  further  report  that  [here  insert  the  conclusion  of  facts]. 

I  would  further  report  that  [here  insert  the  conclusions  of  law, 
where  that  is  required  by  the  order  of  the  court]. 

All  of  which  is  respectfully  submitted. 

G.  H.,  Master  in  chancery. 

Dated  this  day  of  ,  18     . 


Form  No.  57. 

Exception  to  the  master's  report. 

[Caption  and  title  as  in  No.  1.] 

In  Chancery. 

Now  comes  the  defendant  in  the  above-entitled  cause  and  makes 
exceptions  to  the  report  of  the  master  in  chancery  of  this  court  [or 


CmCUIT   COURT   FORMS   IN   EQUITY.  669 

of  the  special  master  appointed  by  this  court],  to  whom  this  cause 
was  referred  to  take  the  proofs  of  the  respective  parties  [or,  to  take 
the  proofs  of  the  respective  parties  and  to  state  an  account  between 
them]  and  report  the  same  [or,  to  take  the  proofs  of  the  respective 
parties  and  report  his  conclusions  of  fact  and  of  the  law  thereon] 
bj  an  order  of  this  court  made  on  the  day  of  ,  18     ; 

and  which  report,  executed  in  compliance  with  said  order,  bears 
date  on  the  day  of  ,  18     . 

1.  For  that  the  said  master  has,  etc. 

2.  For  that  the  said  master  has,  etc. 

Whereas  the  said  master  should  have,  etc.  [here  state  what  he 
should  have  decided  and  reported]. 

Wherefore  the  defendant  excepts  to  the  said  report  and  asks  the 
judgment  of  the  court  thereon. 

J.  K.,  Solicitor  for  the 


Form  No.  58. 


Order  where  defendant  appears,  or  is  brought  into  court  by  attach- 
ment and  admits  his  contempt,  that  he  put  in  his  answer  within 
a  specified  time. 

[Title  as  in  Form  No.  1.] 

In  Equity. 

It  appearing  to  the  court  that  the  defendant,  C.  D.,  being  in 
contempt  for  not  appearing  or  answering  to  the  bill  of  complain- 
ant in  this  cause,  a  writ  of  attachment  had  issued  against  him, 
directed  to  the  marshal   of  ,  returnable   forthwith ; 

whereupon  the  marshal  has  returned  that  he  had  attached  the  de- 
fendant, C.  D,,  and  had  him  in  custody  before  the  court;  and  the 
said  C.  D.  now  being  before  the  court,  and  consenting  to  put  in  his 
answer  in  this  suit,  and  to  pay  the  costs  of  his  contempt,  when  duly 
taxed;  on  motion  of  Mr.  G.  F.,  solicitor  for  the  complainant,  it 
is  ordered  that  the  said  C.  D.  put  in  his  answer  to  the  bill  of  com- 
plaint within  days  from  the  date  of  this  order,  or  that  the 
complainant  may  apply  to  this  court  for  such  further  order  as  may 
be  just. 


6t0         federal  pleading,  practice  and  procedure. 

Form  No.  59. 

Order  in  case  of  contempt  for  not  ansTvering  C.  D.,  defendant  denies 
his  contempt;    directing  the  filing  of  interrogatories,  etc. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

It  appearing  to  the  court  that  the  defendant,  C.  D.,  being  in 
contempt  for  not  appearing  or  answering  to  the  bill  of  complaint 
in  this  cause,  a  writ  of  attachment  had  issued  against  him,  directed 
to  the  marshal  of  ,  returnable  forthwith ;  Avhereupon 

the  marshal  has  returned  that  he  had  attached  the  defendant  C.  D., 
and  had  him  in  custody  before  the  court ;  and  the  said  C.  D.  being 
now  before  the  court,  and  denying  that  he  is  guilty  of  the  miscon- 
duct alleged  against  him,  it  is  ordered  that  the  complainant  do 
^Yithin  days  file  with  the  clerk  of  this  court  interrogatories 

specifying  the  facts  and  circumstances  alleged  against  the  said  C. 
D.,  defendant,  and  that  he  serve  a  copy  thereof  on  the  said  C.  D. ; 
and  that  the  said  C.  D.  put  in  written  answers  to  such  interrogator- 
ies, upon  oath,  and  file  the  same  within  days  after  the  time 
when  such  interrogatories  are  served  on  him,  in  the  office  of  the 
clerk  of  this  court.  And  it  is  further  ordered  that  it  be  referred  to 
the  master  in  chancery  of  this  court,  to  examine  the  said  C.  D.,  on 
oath,  upon  the  said  interrogatories  ;  and  to  take  such  further  proofs 
as  either  party  may  produce  before  him  in  relation  to  the  alleged 
contempt;  and  that  he  report  such  answer  and  proofs  to  this  court. 
And  it  is  further  ordered  that  the  said  marshal  detain  the  defend- 
ant in  his  custody,  and  that  the  said  C.  D,  attend,  from  day  to  day, 
before  this  court,  until  the  further  order  of  the  court. 


Form  No.  60. 

Order  convicting  defendant  of  a  contempt  after   his  examination 
upon  interrogatories. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

A  writ  of  attachment  having  been  heretofore  issued  out  of  and 
under  the  seal  of  this  court,  against  the  defendant  ,  for 


CIRCUIT   COURT   FORMS   IN    EQUITY.  671 

his  contempt  in  not  answering  the  complainant's  bill,  directed  to 
the  marshal  of  the  county  of  ,  and  returnable  forthwith ; 

and  the  said  marshal  having  returned  that  he  had  attached  the  said 
,  and  taken  his  body  and  had  him  in  custody  before  the 
court ;  and  the  said  having  been,  by  virtue  of  such  attach- 

ment, personally  before  the  court  on  the  said  day  of  , 

instant,  and  denying  the  alleged  contempt,  it  was  thereupon  or- 
dered that  the  complainant  in  this  cause  should,  within  ' 
days,  file  in  the  office  of  the  clerk  of  this  court  interrogatories  speci- 
fying the  facts  and  circumstances  alleged  against  the  said  ; 
and  that  he  serve  a  copy  thereof  on  the  said  ;  and  that 
the  said  should  put  in  written  answers  to  such  interroga- 
tories, upon  oath,  and  file  the  same  within  days  after  the 
service  of  such  interrogatories ;  and  that  it  should  be  referred  to 
the  master  in  chancery  of  this  court  to  examine  the  said  , 
on  oath,  upon  such  interrogatories,  and  to  take  such  further  proofs 
as  either  party  might  produce  before  him  in  relation  to  the  alleged 
contempt ;  and  it  now  appearing  to  the  court,  from  the  report  of 
the  said  master  and  the  answers  and  proofs  thereto  annexed,  that 
the  said  has  committed  the  contempt  with  which  he  is 
charged,  and  this  court  now  adjudging  him  to  have  been  guilty  of 
the  misconduct  alleged,  and  that  such  misconduct  was  calculated 
to,  or  did  actually,  defeat,  impair,  impede  or  prejudice  the  rights 
of  the  complainant  in  this  cause ;  it  is  therefore  ordered  that  a  fine 
of  dollars  be  and  the  same  is  hereby  imposed  upon  the 
said  for  his  misconduct.  And  it  is  further  ordered  that 
the  said  do  pay  to  the  said  complainant  the  costs  and  ex- 
penses of  the  proceedings  for  such  misconduct,  and  now  taxed  at 
the  sum  of  dollars.  And  it  is  further  ordered  that  the 
said  be  and  he  is  hereby  directed  to  stand  committed  to 
the  county  jail  in  the  county  of  ,  there  to  remain 
charged  with  this  contempt  until  he  shall  have  fully  answered  the 
said  bill  of  complaint,  and  paid  such  fine  and  costs,  unless  the  court 
shall  see  fit  sooner  to  discharge  him,  and  that  a  warrant  issue  for 
that  purpose. 

Upon  this  order  a  mittimus,  or  warrant  of  commitment  for  con- 
tempt in  not  .appearing,  will  issue. 


672         federal  pleading,  practice  and  procedure. 

Form  No.  61. 

Order  to  refer  second  and  third  ansTvers  on  the  old  exceptions. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

Exceptions  having  been  heretofore  taken  to  the  answer  of  the 
defendant,  C.  D.,  and  such  answer  having  been  reported  insufficient 
in  the  matters  of  the  first  and  fourth  exceptions,  the  defendant  has 
put  in  a  second  [or  third]  answer  to  the  bill  in  this  cause ;  which 
answer  the  complainant  alleges  to  be  insufficient  in  the  matters  of 
the  first  and  fourth  exceptions.  It  is  therefore  ordered  that  it  be 
referred  to  the  master  in  chancery  of  this  court,  to  whom  such  ex- 
ceptions were  originally  referred,  to  look  into  the  bill  of  complaint, 
the  answer  of  the  defendant,  and  the  said  first  and  fourth  excep- 
tions, and  to  report  whether  such  second  [or  third]  answer  is  suffi- 
cient in  the  matters  of  the  exceptions  or  not. 


-  Form  No.  62. 

Order  of  reference  when  defendant  does  not  submit  to  answer  ex- 
ceptions. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

Exceptions  for  insufficiency  having  been  filed  to  the  answer  of 
the  defendant,  C.  D.,  on  the  day  of  last,  and  the 

said  C.  D.  not  having  submitted  to  answer  said  exceptions,  it  is 
ordered  that  it  be  referred  to  the  master  in  chancery  of  this  court, 
to  look  into  said  bill  and  answer  of  the  defendant,  C.  D.,  and  such 
exceptions,  and  report  whether  said  exceptions  are  well  taken  or  not. 


Form  No.  63. 

Order  for  further  answ^er  after  report  of  master. 

[Title  as  in  Form  No.  1.] 

In  Equity. 

The  answer  of  the  defendant,  C.  D.,  having  been  reported  in- 
sufficient in  the  matters  of  the  first  and  fourth  exceptions  thereto, 
by  the  master  in  chancery,  to  whom  the  exceptions  of  the  com- 


CIRCUIT   COURT    FORMS    IN    EQUITY.  673 

plainant  to  such  answer  were  referred,  and  the  report  of  the  said 
master  being  approved  by  the  said  court,  against  the  defendant, 
C.  D.,  it  is  therefore  ordered  that  the  said  C.  D.  put  in  a 
further  answer  to  the  matters  of  the  first  and  fourth  exceptions 
within  days  from  this  date,  and  pay  the  costs  of  such  ex- 

ceptions. 

Form  No.  64. 

Interrogatories  for  the   examination  of  a   party  in  contempt  for  not 

answering. 

[Title  of  cause  as  in  Form  No.  1.] 
In  Equity. 

Interrogatories  to  be  exhibited  on  the  part  of  complainant,  for 
the  examination  of  ,  the  defendant  in  this  cause,  pursuant 

to  an  order  made  in  said  cause  on  the  day  of  , 

18       . 

First.  Were  you  not,  on  or  about  the  day  of 

last,  or  at  any  other  and  what  time,  duly  served  with  a  summons  in 
the  above-entitled  cause  ?  When  and  by  whom  and  how  was  such 
service  made  ?     Answer  this  interrogatory  fully  and  particularly. 

Second.  Is  not  the  writ  of  summons  now  shown  to  you  the  one 
served,  and  a  copy  of  the  same  left  with  you  ?     Answer  fully. 

Third.  Were,  etc.     [Here  insert  such  additional  interrogatories 
as  may  be  deemed  necessary.] 

,  Solicitor  for  complainant. 


Form  No.  65. 


Order  for  commitment  of  defendant  for   disobeying  order  to  put  in 

his  answ^er. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

An  order  having  been  entered  in  this  cause  on  the  day  of 

,  18     ,  requiring  the  defendant,  ,  to  put  in  his 

answer  to  the  bill  of  complaint  within  days  from  the  date 

of  said  order,  or  that  in  default  thereof  the  complainant  might  be 
at  liberty  to  apply  to  this  court  for  such  further  order  as  might  be 
just;  and  it  appearing  to  the  court  that  the  defendant,  , 

43 


674  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

has  failed  to  put  in  his  answer  as  required  by  said  order;  and  this 
court  now  adjudging  the  said  to  have  been  guilty  of  the 

misconduct  alleged,  and  that  such  misconduct  was  calculated  to,  or 
did  actually,  defeat,  impair,  impede  or  prejudice  the  rights  or  rem- 
edies of  the  complainant  in  this  cause,  it  is  thereupon,  on  motion  of 
Mr.  ,  solicitor  for  the  complainant,  ordered  that  the  said 

be  and  he  is  hereby  ordered  to  stand  committed  to  the 
common  jail  of  the  county  of  ,  there  to   remain  charged 

upon  this  contempt  until  he  shall  have  put  in  his  answer  as  afore- 
said ;  unless  the  court  shall  see  fit  sooner  to  discharge  him.  And  it 
is  further  ordered  that  a  warrant  issue  for  that  purpose. 


Form  No.  66. 

Order  for  marshal  to  arrest  for  contempt. 

[Title  of  cause  as  in  Form  No.  1.] 
In  Equity. 

The  defendant,  C.  D.,  being  in  contempt  for  not  appearing  and 
answering  to  the  bill  of  complaint  in  this  cause,  and  a  commission 
of  rebellion  having  been  heretofore  issued  out  of  and  under  the  seal 
of  this  court,  directed  to  certain  commissioners  therein  named,  com- 
manding them  to  attach  the  said  C.  D.,  as  a  rebel  and  contemner  of 
the  law,  and  to  have  him  before  this  court  on  the  day  of 

instant;  and  the  said  commissioners  having  returned  that 
they  had  made  diligent  search  and  inquiry  after  the  said  C.  D.,  so 
as  to  attach  his  body  by  virtue  of  the  said  commission,  but  notwith- 
standing all  their  endeavors  they  could  not  meet  with  him  for  that 
purpose,  as  by  such  commission  and  the  return  thereto  appears : 
it  is  thereupon  ordered  that  the  marshal,  now  attending  this  court 
at  its  present  term,  and  executing  all  the  powers  and  duties  of  a 
sergeant-at-arms,  do  forthwith  go  and  take  the  said  C.  D.  into  his 
custody,  and  him  safely  keep  and  bring  him  immediately  into  this 
court,  before  the  court  to  answer  for  his  contempt,  and  to  do  and 
receive  what  this  court  shall  thereupon  further  order  in  the  premises. 
And  it  is  further  ordered  that  the  said  marshal  do  with  all  con- 
venient speed  certify  to  this  court,  under  his  hand,  his  doings  in  the 
premises. 

Upon  this  order  a  warrant  to  the  marshal  will  issue. 


circuit  court  forms  in  equity.  675 

Form  No.  67. 

Order  for  a  sequestration. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

The  defendant  being  in  contempt  for  not  appearing  and  answer- 
ing the  bill  of  complaint  in  this  cause,  and  a  warrant  having  been 
issued  to  the  marshal  of  the  county  of  ,  attending  the  court 

at  its  present  term,  and  as  such  executing  all  the  duties  of  a  ser- 
geant-at-arms,  requiring  him  forthwith  to  go  and  take  the  said 

into  his  custody  and  bring  him  into  this  court  to  answer 
for  his  contempt,  in  pursuance  of  an  order  of  this  court  made  on  the 

day  of  ;  and  the  said  marshal,  acting  as  sergeant- 

at-arms,  having  returned  that  he  had  made  diligent  search  and 
inquiry  after  the  said  ,  but  that  he  did  so  abscond  and 

secrete  himself  that  he  could  not  be  found  to  be  apprehended,  as 
by  the  said  warrant  and  the  return  thereof  appears :  it  is  therefore 
ordered  that  a  commission  of  sequestration  do  issue  against  the  said 
,  directed  to  E.  F.,  G.  H.  and  J.  K.,  commissioners, 
directing  them  to  sequester  the  defendant,  ,  personal  estate, 

and  the  rents,  issue  and  profits  of  his  real  estate,  until  the  defendant, 

,  shall  appear  to  the  bill  of  complaint  in  this  cause,  clear 
his  contempt,  and  this  court  shall  make  an  order  to  the  contrary. 
Upon  this  order  being  made,  a  writ  of  sequestration  will  issue. 


Form  No.  68. 


Order  for  examination  of  defendant  on  interrogatories,  etc.,  on  third 
answ^er  being  held  insufficient. 

[Title  as  in  Form  No.  1.] 

In  Equity. 

The  third  answer  of  the  defendant,  ,  having  been 

reported  insufficient,  on  a  reference  to  the  master  upon  the  original 
exceptions,  in  the  matters  of  the  first  and  fourth  exceptions,  and  the 
report  of  the  said  master  having  been  filed,  and  having  become 
absolute,  an  attachment  was  thereupon  issued  against  the  said 
,  in  pursuance  of  an  order  of  this  court  rendered  on 
the  day  of  last.     And  the  said  ,  now 


676  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

being  personally  before  the  court  by  virtue  of  the  said  attachment, 
and  this  court  now  adjudging  the  defendant  to  have  been  guilty  of  the 
misconduct  alleged,  and  that  such  misconduct  was  calculated  to,  or 
actually  did,  defeat,  impair,  impede  or  prejudice  the  rights  or  reme- 
dies of  the  complainant  in  this  cause ;  it  is  therefore  ordered  that 
the  said  be  examined  upon  interrogatories  before  the 

master  in  chancery  of  this  court,  to  the  points  wherein  his  said 
third  answer  is  reported  insufficient ;  and  that  he  stand  committed 
to  the  common  jail  of  the  county  of  ,  until  he  shall 

have  answered  such  interrogatories  to  the  satisfaction  of  the  said 
master,  and  paid  the  costs  incurred  by  reason  of  his  default,  now 
taxed  at  dollars  ;  and  that  a  warrant  issue  for  that  purpose. 

And  it  is  further  ordered  that  the  marshal  of  said  county  do 
keep  the  defendant  in  his  actual  custody  until  the  court  shall  have 
made  some  order  in  the  premises,  and  that  he  take  the  said 
before  the  said  master  to  be  examined,  at  such  times 
as  such  master  shall  appoint. 


Form  No.  69. 

Order  for  an  attachment  on  third  answer  being  held  insufficient. 

[Title  as  in  Form  No.  L] 

In  Equity. 

The  third  answer  filed  by  the  defendant,  ,  having  been 

reported  insufficient,  on  a  reference  to  the  master  in  chancery  upon 
the  original  exceptions,  in  the  matters  of  the  first  and  fourth  ex- 
ceptions, and  the  report  of  said  master  having  been  filed  and  hav- 
ing become  absolute,  it  is  ordered  that  an  attachment  issue  against 
the  defendant, 


Form  No.  70. 

Order  for  temporary  injunction. 

[Caption  and  title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

On  reading  and  filing  the  bill  of  complaint  in  this  cause,  affida- 
vits, etc.,  and  on  motion  of  J.  E.,  solicitor  for  complainant,  ordered 


CIRCUIT   COURT   FORMS    IN    EQUITY.  677 

that  the  defendant  show  cause  at  the  next  special  term  of  this  court 
to  be  held  at  ,  on  the  day  of  next,  why 

a  general  injunction  should  not  issue  against  him  as  prayed  for  by 
the  said  bill  of  complaint,  and  that  in  the  meantime  a  temporary 
injunction  be  issued  in  this  cause,  according  to  the  prayer  of  the 
said  bill. 

Form  No.  71. 

Order  allowing  the  complainant  to  dismiss  his  bill. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

The  complainant  applying  to  dismiss  his  bill  in  this  cause,  on  mo- 
tion of  Mr.  ,  solicitor  for  complainant,  it  is  ordered  that 
leave  to  dismiss  the  same  be  granted  accordingly,  on  the  complain- 
ant paying  to  the  defendant  his  costs  in  this  suit,  to  be  taxed. 


Form  No.  72. 

Order  to  pay  money  into  court. 

[Title  of  cause  as  in  Form  No.  1.] 
In  Equity. 
On  reading  and  filing  the  bill  and  answer  in  this  cause,  and  on 
motion  of  Mr.  ,  solicitor  for  the  defendant,  in  opposition  to 

said  motion,  it  is  ordered  that  the  defendant,  ,  do,  within 

days  from  the  date  of  this  order,  pay  into  the  hands  of 
the  clerk  of  this  court,  in  trust  in  this  cause,  the  sum  of 
dollars,  admitted  by  the  answer  of  the  defendant  to  be  due  from 
him ;  and  that  when  such  money  is  paid  in  it  be  deposited  by  said 
clerk,  in  trust,  in  the  bank  of  ,  to  the  credit  of 

this  cause,  there  to  remain  until  the  further  order  of  this  court. 


Form  No.  73. 

Order  directing  plea  to  stand  for  an  ansv^er. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

The  plea  of  the  defendant,  C.  D.,  to  the  bill  of  complaint  in  this 
cause  having  heretofore  come  on  to  be  argued,  and  counsel  for  the 


I 


678  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

respective  parties  having  been  heard  thereupon,  it  is  ordered  that 
the  said  plea  do  stand  for  an  answer,  with  liberty  to  the  complain- 
ant to  except  thereto. 

Form  No.  74. 

Order  of  reference  of  a  plea  of  former  suit  pending. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

On  filing  a  plea  in  this  cause  averring  that  there  is  a  former  suit 
depending  in  this  court  for  the  same  matters  as  are  involved  in  the 
present  suit,  it  is  therefore  ordered  that  it  be  referred  to  the  master 
in  chancery  of  this  court,  to  look  into  the  bill  and  the  plea  in  this 
cause,  and  the  bill  in  the  said  plea  alleged  to  have  been  exhibited 
by  the  complainant  against  the  defendant  previous  to  the  commence- 
ment of  this  suit,  and  into  the  other  pleadings  and  proceedings 
therein,  and  to  report  whether  the  said  plea  is  true. 


Form  No.  75. 

Order  for  cause  to  stand  over  to  add  ne'W  parties. 

[Caption  and  title  of  cause  as  in  Form  No.  1.] 
In  Equity. 
This  cause  coming  on  to  be  heard  this  day,  and  counsel  for  both 
parties  having  been  in  part  heard,  and  it  appearing  to  the  court 
that  E.  F.  and  G.  H.  are  necessary  parties  to  this  cause,  it  is  or- 
dered that  this  cause  do  stand  over,  to  the  end  that  the  complainant 
may  make  the  said  E.  F.  and  G.  H.  parties  thereto,  either  by 
amendment  or  supplemental  bill,  as  he  may  be  advised. 


Form  No.  76. 

Order  for  cause  to  stand  over  to  supply  proofs. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

This  cause  coming  on  to  be  heard  this  day,  and  counsel  for  both 

parties  having  been  in  part  heard ;  and  it  appearing  to  the  court 

that  the  complainant  has  omitted  to  introduce  proof  of  the  death 

of  E.  F.,  his  intestate,  it  is  ordered  that  this  cause  do  stand  over. 


CIRCUIT    COURT    FORMS    IN   EQUITY.  679 

to  the  end  that  the  complainant  may  examine  witnesses  to  prove 
the  death  of  such  intestate. 


Form  No.  77. 

Master's  report  upon  exceptions    to  answer  for  insufficiency. 
In  the  court,  etc.,  term,  18 

A.  B.     ^ 

V.  /-In  chancery. 

C.  D.     j 

To  the  honorable  ,  judge  of  the  court  of  the 

county  of  ,  in  the  state  of  .     In  chancery 

sitting : 

In  pursuance  of  an  order  of  this  court  made  in  the  above-en- 
titled cause,  on  the  day  of  ,  18  ,  whereby  it 
was  referred  to  me,  as  master  in  chancery  of  this  court,  to  look 
into  the  complainant's  bill  of  complaint,  the  answer  of  the  defend- 
ant, ,  and  the  exceptions  taken  to  said  answer  by  the 
complainant,  and  report  whether  said  exceptions  are  well  taken 
or  not : 

I,  the  master  in  chancery,  do  hereby  respectfully  certify  and 
report  that,  having  been  attended  by  the  counsel  of  the  respective 
parties,  and  having  looked  into  said  bill  and  answer  and  the  ex- 
ceptions taken  thereto,  and  having  fully  considered  the  same,  I 
find  that  the  first  and  fourth  exceptions  to  said  answer  are  well 
taken,  and  that  the  second,  third  and  fifth  exceptions  are  not  well 
taken. 

All  of  which  is  respectfully  submitted. 

,  Master  in  chancery,  county. 


Form  No.  78. 

Exceptions   to  master's    report  on  exceptions  to  ansv/er. 
[Caption  and  title  of  cause  as  in  Form  No.  1.] 
In  Equity. 
Exceptions  taken  by  the  complainant  to  the  report  of  the  master  in 
chancery  of  this  court,  to  whom  it  was  referred  to  report  as  to 
the  exceptions  filed  to  the  answer  of  the  defendant. 
First.  For  that  the  said  master  has,  in  and  by  his  said  report, 
certified  that,  etc.    [Here  set  out  the  words  of  the  report.]    Whereas 


680  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

the  said  master  ought  to  have  certified  that  the  exceptions  to  the 
answer  of  the  defendant,  ,  were  well  taken,  and  that  the 

said  answer  of  the  defendant,  ,  was  imperfect,  insufficient 

and  evasive  in  the  particulars  excepted  to. 

Second.  For  that  the  said  master  has  certified,  etc.  (and  so  on). 

In  all  of  which  particulars  the  report  of  the  said  master  is  erro- 
neous, and  the  complainant  appeals  therefrom  to  the  judgment  of 
this  honorable  court. 

,  Solicitor  for  complainant. 


Form  No.  79. 

Masters  report  as  to  sufiBciency  of  defendant's  examination. 
[Title  of  cause  as  in  Form  No.  1.] 
To  the  honorable  ,  judge  of  the  court  of  the 

county  of  ,  in  the  state  of  .      In  chancery 

sitting : 
In  pursuance  of  an  order  of  this  court  made  in  the  above-enti- 
tled cause,  on  the  day  of  ,  18     ,  whereby  it  was 
referred  to  me,  as  master  in  chancery  of  this  court,  to  examine  the 
defendant,             ,  on  interrogatories  to  the  points  wherein  his  third 
answer  to  the  bill  in  this  cause  was  reported  insufficient ;  -I,  the 
said  master,  do  hereby  respectfully  certify  and  report  that,  having 
been  attended  by  the  counsel  for  the  respective  parties,  and  having 
caused  the  said                  to  be  brouo-ht  before  me,  I  examined  him 
upon  oath  upon  the  written  interrogatories  filed  for  that  purpose, 
and  also  viva  voce,  and  that  his  examination  thereto  is  contained  in 
a  schedule  hereto  annexed,  marked  A.     And  I  do  further  certify 
and  report  that,  in  my  opinion,  the  said  examination  is  sufficient. 
All  of  which  is  respectfully  submitted. 
Dated  at,  etc.                                               ,  Master  in  chancery. 

Form  No.  80. 

Commissioi)  to  take  testimony. 

[Caption  and  title  of  cause  as  in  Form  No.  1.] 

The    President   of    the    United    States    of    America    to    A.    B., 

Greeting : 

Know  ye,  that  we,  in  confidence  of  your  prudence  and  fidelity, 

have  appointed  you,  A.  B.,  commissioner,  and  by  these  presents  do 


CIRCUIT    COURT   FORMS    IN    EQUITY.  681 

give  you,  A.  B.,  full  power  and  authority  diligently  to  examine 
upon  corporal  oath  or  affirmation,  before  you  to  be  taken  and  upon 
the  interrogatories  hereunto  annexed,  C.  D.  and  E.  F.  as  witnesses 
on  the  part  of  the  [plaintiff  or  defendant]  in  a  certain  cause  now 
pending  and  undetermined  in  the  circuit  court  of  the  United  States 
of  America  for  the  district  of  New  York,  second  circuit,  wherein 
is  plaintiff  and  is  defendant. 

And  we  do  further  empower  you,  A.  B.,  to  examine  on  the  same 
behalf,  and  in  like  manner,  any  other  person  or  persons  who 
may  be  produced  as  a  witness  before  you ;  and  we  do  hereby 
require  you,  A.  B.,  before  whom  such  testimony  may  be  taken,  to 
reduce  the  same  to  writing  and  to  close  it  up  under  your  hand  and 
seal,  directed  to  ,  clerk  of  said  court,  as  soon  as  may  be  con- 

venient after  the  execution  of  this  commission  ;  and  that  you  return 
the  same,  when  executed  as  above  directed,  with  the  title  of  the 
cause  endorsed  on  the  envelope  of  the  commission. 

Witness  the  honorable  Morrison  R.  Waite,  Chief  Justice  of  the 
Supreme  Court  of  the  United  States,  at  the  city  of  Washington, 
this  day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  ,  and  of  our  independence  the 

Joseph  M.  Duvel,  Clerk. 

G.  H.,  Attorney. 


Form  No.  81. 

Commission  of  dedimus  protestatum. 

[Caption  and  title  of  cause  as  in  Form  No.  1.] 

The  President  of  the  United  States  of  America,  to  A.  B.,  C.  D. 
and  E.  F.,   Greeting: 
Know  ye,  that  in  confidence  of  your  prudence  and  fidelity,  you 
have  been  appointed,  and  by  these  presents  you,  or  any  two   or 
more  of  you,  are  invested  with  full  power  and  authority  to  exam- 
ine on  his  corporal  oath,  as  a  witness  in  a  case  de- 
pending in  the  circuit  court  of  the  United  States  for  the 
circuit  and  district  of  (or,  in  the  district  court  of  the 
United  States  in  and  for  the  district  of  ),  wherein 
is  plaintiff  and                  defendant,  on  the  part  of  the 
upon  the  interrogatories  annexed  to  this  commission ;  and  therefore 


683     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

you  are  hereby  commanded  that  you,  or  any  two  or  more  of  you, 
at  certain  days  and  places  to  be  appointed  by  you  for  that  purpose, 
do  cause  the  said  to  come  before  you,  and  then  and  there 

examine  him  on  oath  upon  the  said  interrogatories,  and  that  you 
take  such  examination  and  reduce  the  same  into  writing,  and 
return  the  same  annexed  to  this  writ,  closed  up  under  your  seals,  or 
the  seals  of  any  two  or  more  of  you,  into  the  said  circuit  (or  dis- 
trict) court,  before  the  judges  (or  judge)  thereof,  with  all  conven- 
ient speed. 

Witness,  etc. 

[The  interrogatories  and  cross-interrogatories  (if  any)  to  be  an- 
nexed to  the  commission,  and  the  depositions,  are  to  be  drawn  up  in 
the  usual  form.] 


Form  No.  82. 

Affidavit  for  habeas  corpus  ad  testificandum. 

United  States  circuit  court,  district  of 

A.  B.       1 
V.  V  ss  : 

C.  D.      J 

,  of  ,  the  above-named  plaintiff,  maketh 

oath  and  saith  that  ,  now  a  prisoner  for  debt  (as  the  case 

may  be)  in  the  custody  of  the  sheriff  of  (or  as  the  case 

may  be),  is  a  material  witness  for  this  deponent  at  the  trial  of  this 
cause,  without  whose  testimony,  as  he  is  advised  by  his  counsel  and 
verily  believes,  this  deponent  cannot  safely  proceed  to  the  trial 
thereof. 

Sworn,  etc. 


Form  No.  83. 

Abstracts  of  pleadings,  etc. 

In  the 

court,  etc.,             term,  18     . 

A.  B. 

V  In  chancery. 

V. 

C.  D. 

The  bill 

in  this  cause  was  filed  on  the                 day  of 

,  and 

the  replication  on  the                  day  of 

18     ,  and  the  replication  on  the  day  of  ,  18 


CIRCUIT    COURT    FORMS    IN    EQUITY.  683 

The  following  witnesses  were  examined  on  the  day  of  , 

18  ,  before  the  master  in  chancery,  in  pursuance  of  an  order  of 
referee,  made  on  the  day  of  ,  18     ,  to  wit,  E.  F. 

and  G.  H.  on  the  part  of  the  complainant,  and  J.  K.  and  L.  M.  on 
the  part  of  the  defendant.  The  following  documents  were  also 
produced,  to  wit,  etc. 

The  object  of  the  bill  is  to  procure  a  conveyance  from  the 
defendant  of  the  real  estate  described  in  the  bill,  and  being  the, 
etc.     [Here  insert  the  description.] 


Form  No.  84. 

Agreement  to  submit  the  cause  on  printed  arguments. 

In  the  court,  term,  18 

A.  B.      ^ 

V.  V  In  chancery. 

C.  D.      J 

It  is  stipulated  and  agreed  that  this  cause  be  submitted  to  the 
court  on  printed  arguments ;  the  complainant's  counsel  to  serve 
his  argument  within  days,   and   the    defendant's   counsel 

to  answer  the  same  within  days  thereafter,  and  the  com- 

plainant's   counsel    to  reply  within  days   after   the   de- 

fendant's argument  shall  have  been  served. 

Dated,  etc.  ,  Solicitor  for  complainant. 

,  Solicitor  for  defendant. 


Form  No.  85. 

Abstract  of  pleadings  and  points  in  issue. 

[Title  of  cause  as  in  Form  No.  1.] 
In  Equity. 
Bill.  Answer. 

States  that  before  complain-  Admitted.  But  the  defend- 
ant purchased  lot  7,  etc.,  L.  M.  ant  on,  etc.,  purchased  of  L.  M. 
owned  the  improvements,  etc.         all  the  improvements. 


684  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

Lot  9  was  leased  to  L.  M.  on,         Denies,  etc. 
etc.,  but  by  an  agreement,  etc. 

On  the  day  of  ,         Substantially  admitted. 

etc.,  both  parties,  etc. 

Complainant  paid,  etc.  Denied. 

Usual  charge  of  confederacy, 
etc. 

Answer  on  oath  prayed  for. 

Prayer    for    injunction,    that         General    traverse,   and   usual 
defendant    may   be    decreed    to     conclusion. 
execute     conveyance,    and     for 
general  relief. 

Replication. 

Evidence. 

For  complainant,  E.  F.   tes-         For  defendant,   J.  R.  testifies 
tifies  that,  etc.  that,  etc. 

G.  H.  testifies  that,  etc.  L.  M.  testifies  that,  etc. 


FoRxM  No.  86. 

Briefs  and  points  on  hearing. 

In  the  court,  etc.,  term,  18     . 

A.  B.  ■) 

V.  V  In  chancery. 

C.  D.  J 

I. 

The  complainant  has  a  perfect  remedy  at  law  whereby  he  may 
avail  himself  of  every  ground  of  complaint  set  forth  in  the  bill. 

Authorities  cited. 

XL 

The  court  of  chancery  will  not  assume  jurisdiction  in  this  case 
upon  the  ground  of  its  being  a  bill  of  peace.     Because, 

First.  The  bill  is  filed  only  against  a  single  party,  which  party 
has  neither  commenced  nor  threatened  to  commence  a  multiplicity 
of  suits,  etc. 

Second.  The  apprehensions  of  the  complainant  that,  etc. 

Third.  That,  etc. 

Authorities  cited. 


CIRCUIT  COURT  FORMS  IN  EQUITY.  685 

III. 

The  defendants  are  authorized  by  the  act  of,  etc.,  to  pass  the 
ordinance  in  question. 
Authorities  cited. 

lY. 
The  ordinance  is  a  reasonable  regulation  of  trade,  etc. 
Authorities  cited. 


Form  No.  87. 


Decree  on  staying  infringement  after  verdict  establishing  patent ; 
temporary  injunction. 

[Title  of  cause  as  in  Form  No.  1.1 

In  Equity. 

The  court  doth  order  that  an  injunction  be  awarded  to  restrain 
the  defendants,  C.  and  D.,  etc.,  their  agents,  servants  and  workmen, 
during  the  continuance  of  the  letters  patent  in  the  plaintiffs'  bill 
mentioned,  and  whilst  the  same  may  be  in  force,  from  using  or  em- 
ploying without  the  leave  or  license  of  the  plaintiffs,  in  or  for  the 
purpose  of  the  folding  of  the  flaps  of  envelopes  in  succession  one 
after  the  other,  or  for  the  gumming  or  cementing  together  the  edges 
of  such  flaps  and  causing  such  edges  to  adhere  together  whilst  in 
course  of  being  folded,  any  machines  similar  to  the  machine  which 
was  produced  for  inspection  at  their  factory  on  the  day  of 

,  as  in  the  plaintiffs'  bill  stated,  or  any  machinery,  mech- 
anism or  mechanical  contrivance  made  or  arranged  according  to  the 
plaintiffs'  said  patent  inventions,  or  differing  therefrom  only  colorably 
or  by  the  substitution  of  mere  mechanical  equivalents  for  the  same, 
and  from  folding  the  flaps  of  envelopes  in  succession  one  after  the 
other,  and  gumming  or  cementing  the  edges  of  such  flaps  and 
causing  the  same  to  adhere  together  whilst  such  flaps  are  in  course 
of  folding  by  means  of  any  such  machine,  machinery,  mechanism 
or  mechanical  contrivances,  and  from  selling  or  offering  for  sale 
any  envelopes  which  have  been  heretofore  manufactured  by  the  said 
defendants,  their  agents,  servants  or  workmen,  and  in  the  manu- 
facture whereof  any  such  machine,  machinery  or  mechanical  con- 
trivance hath  or  have  been  used  or  employed  for  the  purpose  of 
folding  the  flaps  of  such  envelopes  in  succession,  or  for  gumming  or 


686  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

cementing,  or  causing  the  same  to  adhere  together  whilst  such  flaps 
have  been  in  the  course  of  being  folded,  and  generally  from  making, 
using,  exercising,  putting  in  practice  or  vending  plaintiffs'  patent 
inventions,  or  any  or  either  of  them,  without  their  license  or  au- 
thority, and  from  or  in  anywise  conterfeiting,  imitating  or  resem- 
bling the  same,  until,  etc.^ 


Form  No.  88. 

Decree  of  validity  of  patent  in  reference  to  an  infringement ;  account 
and  perpetual  injunction. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

R.  W.,  H.  S.  and  D.  B.  W.  v.  H.  B.,  Jr.,  and  H.  F. 

This  cause  having  been  brought  to  a  final  hearing  upon  the  plead- 
ing and  proofs,  and  counsel  for  the  respective  parties  having  been 
heard  and  the  same  having  been  duly  considered  by  the  court :  It  is 
found  and  hereby  ordered,  adjudged  and  decreed  that  the  letters 
patent  No.  12,649,  granted  unto  the  said  R.  "W.,  April  3,  1855,  is 
a  good  and  valid  patent,  being  the  patent  referred  to  in  the  plain- 
tiffs' bill,  and  that  the  said  R.  W.  was  the  original  and  first  inventor 
of  the  improvement  described  and  claimed  in  the  said  patent ;  and 
also  that  the  said  defendants  have  infringed  upon  the  said  patent, 
and  upon  the  exclusive  rights  of  the  plaintiffs  under  the  same. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the  plain- 
tiffs do  recover  of  the  defendants  the  profits,  gains  and  advantages 
which  the  said  defendants  or  any  or  either  of  them  have  received  or 
made,  or  which  have  arisen  or  accrued  to  them  or  either  of  them 
from  said  infringement  of  said  patents,  by  the  manufacture,  use  or 
sale  of  the  improvements  described  and  secured  by  the  said  letters 
patent  at  any  and  all  times  since  the  seventeenth  day  of  November, 
1856. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the  said 
plaintiffs  do  recover  of  the  defendants  their  costs  and  charges  and 
disbursement  in  this  suit,  to  be  taxed. 

And  it  is  further  ordered,  adjudged  and  decreed    that  it  be  re- 

1  De  la  Rue  v.  Dickinson,  2  Seton  Dec.  (Eng.  ed.,  1862)  911. 


CIRCUIT   COURT   FORMS    IN    EQUITY.  687 

ferred  to  K.  G.  W.,  one  of  the  masters  of  this  court,  residing  in  the 
city  of  New  York,  to  ascertain,  take  and  state  and  report  to  the 
court  an  account  of  the  gains,  profits  and  advantages  which  the 
said  defendants  or  either  of  them  have  received,  or  which  have 
arisen  or  accrued  to  them  or  either  of  them  from  infringing  the 
said  exclusive  rights  of  the  said  plaintiffs  by  the  manufacture,  use 
and  sale  of  the  said  improvements  patented  in  said  letters  patent, 
since  the  said  seventeenth  day  of  November,  1856. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the  plain- 
tiffs, on  such  accounting,  have  the  right  to  cause  the  examination  of 
said  defendants,  and  each  of  them,  ore  tenus  or  otherwise,  and  also 
to  the  production  of  the  books,  vouchers  and  documents  of  each  of 
them,  and  that  the  said  defendants  attend  for  such  purpose  before 
said  master  from  time  to  time  as  said  master  shall  direct. 

And  it  is  also  further  ordered,  adjudged  and  decreed  that  a  per- 
petual injunction  be  issued  in  this  suit  against  the  said  defendants, 
according  to  the  prayer  of  this  bill. 


Form  No.  89. 

Decree  of   Supreme  Court  where  the  court  has  no  jurisdiction. 

[Title  of  cause  as  in  Form  No.  1.] 
In  Equity. 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record 
from  the  circuit  court  of  the  United  States  for  the  district  of  Mas- 
sachusetts, and  was  argued  by  counsel.  On  consideration  whereof  it 
is  the  opinion  of  this  court  that  neither  the  said  circuit  court  nor  the 
district  court  from  which  this  case  was  removed  to  the  said  circuit  court 
had  jurisdiction  of  this  cause,  and  that  consequently  this  court  has  not 
jurisdiction  but  for  the  purpose  of  reversing  the  decree  of  the  said 
circuit  court.  Whereupon  it  is  now  here  ordered  and  decreed  by  this 
court  that  the  decree  of  the  said  circuit  court  entertaining  jurisdic- 
tion in  this  cause  be  and  the  same  is  hereby  reversed  for  the  want  of 
jurisdiction  in  that  court,  and  that  this  appeal  be  and  the  same  is 
hereby  dissmissed  for  the  want  of  jurisdiction  ;  and  that  this  cause 
be  and  the  same  is  hereby  remanded  to  the  said  circuit  court,  with  di- 
rections to  proceed  therein  in  conformity  to  the  opinion  of  this  court. 


688  •  federal  pleading,  practice  and  procedure. 

Form  No.  90. 

Decree  of  perpetual  injunction  upon  printing,  publishing,  etc. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

This  cause  came  on  to  be  heard,  at  this  term,  upon  the  bill  and 
answer  and  the  master's  report,  and  was  argued  by  counsel ;  on 
consideration  whereof,  it  is  ordered,  adjudged  and  decreed  by  the 
court  that  the  master's  report  be  and  the  same  hereby  is  approved 
and  confirmed;  and  thereupon  it  is  further  ordered,  adjudged  and 
decreed  by  the  court  that  said  defendants  be  and  they  hereby  are 
severally  and  perpetually  restrained  and  enjoined  from  printing, 
publishing,  selling  or  exposing  to  sale,  or  causing  or  being  in  any 
way  concerned  in  the  printing,  publishing,  selling  or  exposing  to 
sale  of,  any  copy  or  copies  of  the  whole  or  any  part  of  the  three 
hundred  and  fifty-three  pages  copied,  as  reported  by  the  master,  in 
said  Life  of  Washington,  mentioned  in  the  bill  and  answer,  pub- 
lished by  the  defendants,  from  the  Life  and  Writings  of  Washing- 
ton, mentioned  in  the  bill  and  answer,  published  by  the  plaintiffs, 
the  plaintiffs  waiving  the  account  prayed  for  in  the  bill,  the  court 
does  not  order  such  account.^ 


Form  No.  91. 


Decree  for  perpetual  injunction,  restraining  the  constructing,  using 
or  selling  of  a  planing-machine. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

This  cause  having  been  brought  on  to  be  heard  upon  pleadings 
and  proofs,  and  Mr.  Wm.  H.  Seward  having  been  heard  on  the 
part  of  the  plaintiff,  and  Mr.  Marcus  T.  Reynolds  on  the  part  of 
the  defendants,  and  due  deliberation  having  been  had,  it  is  ordered, 
adjudged  and  decreed*  that  the  defendants  in  this  cause  be  and  they 

1  Folsom  V.  Marsh,  2  Story  C.  C.  100. 


CIRCUIT  COURT  FORMS  IN  EQUITY.  689 

are  hereby  perpetually  enjoined  from  any  further  constructing  or 
using  in  any  manner,  and  from  selling  and  disposing  in  any  man- 
ner of,  the  two  planing-machines  mentioned  in  said  bill  as  erected 
by  them  in  the  town  of  Watervliet,  in  the  county  of  Albany,  or 
either  of  said  machines,  which  machines  are  machines  for  dressinoj 
boards  and  planks  by  planing,  tonguing  or  grooving,  or  either,  to- 
gether or  in  some  separate  combination  constructed  upon  the  prin- 
ciple and  plan  specified  and  described  in  the  schedule  annexed  to 
letters  patent  issued  to  Wm.  W.  Woodworth,  administrator  of  Wm. 
Woodworth,  on  the  8th  day  of  July,  1845 ;  which  letters  were  a 
renewal  upon  a  formal  surrender  for  an  imperfect  specification  of 
letters  patent  issued  to  Wm.  Woodworth  on  the  27th  day  of  De- 
cember, 1820,  and  extended  on  the  16th  day  of  November,  1842, 
to  take  eifect  on  the  27th  day  of  December,  1842,  and  again  ex- 
tended by  act  of  Congress  on  the  26^th  day  of  February,  1845,  and 
from  infringing  upon  and  violating  the  said  patent  in  any  way 
whatsoever. 

And  it  is  further  ordered,  adjudged  and  decreed  that  it  be  re- 
ferred to  Julius  Rhodes,  Esq.,  of  Albany,  counsellor-at-law,  as  a 
master  pro  hac  vice  in  this  cause,  with  the  usual  powers  of  a  master 
of  this  court,  to  ascertain  and  report  the  damages  which  the  plain- 
tiflf  has  sustained,  arising  from  the  infringement  of  his  rights  by  the 
defendants,  by  the  use  of  the  said  two  machines  by  them. 

And  it  is  further  ordered  that  the  report  of  the  said  master 
herein  may  be  made  either  to  this  court  in  term  time  or  to  one  of 
the  judges  thereof  at  chambers  in  vacation ;  and  that  either  party 
may,  on  ten  days'  notice  to  the  other  of  time  and  place,  apply  either 
to  this  court  in  term  time  or  to  one  of  the  judges  thereof  at  chambers 
in  vacation  for  confirmation  of  such  report. 

And  it  is  further  ordered  that  either  party  may  at  any  time, 
on  ten  days'  notice  of  time  and  place  to  the  other,  apply  to  this 
court  in  term  time,  or  to  one  of  the  judges  thereof  in  vacation,  for 
further  directions  in  the  premises. 

And  the  question  of  costs,  and  all  other  questions  in  this  cause, 
are  hereby  reserved  until  the  coming  in  of  the  said  report. 

And  the  complainant  shall  either  pay  to  the  defendants,  or  set 
off  against  the  damages  to  be  awarded,  the  sum  of  two  thousand 
dollars,  which  he  offered  in  his  bill  to  pay  them,  with  interest  from 
the  5th  of  December,  1845. 
44 


690         federal  pleading,  practice  and  procedure. 

Form  No.  92. 

Decree  of  perpetual  injunction  on  the  use  of  another's  trade-marks. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

This  cause  came  on  to  be  heard  at  this  term  upon  the  bill,  answer 
and  proofs  in  the  cause,  and  was  argued  by  counsel  on  behalf  of 
the  plaintiffs,  no  counsel  appearing  for  the  defendant  [the  counsel 
who  had  previously  appeared  for  him  having  voluntarily  withdrawn 
from  the  cause]. 

On  consideration  whereof,  it  is  ordered,  adjudged  and  decreed  by 
the  court  that  a  perpetual  injunction  be  granted  in  the  premises 
according  to  the  prayer  of  the  bill,  and  that  the  plaintiffs  do  recover 
costs  against  the  defendant,  to  be  taxed  by  the  clerk  under  the 
direction  of  the  court.^ 


Form  No.  93. 

Order  staying  the  use  of  a  trade-mark  as  to  cutlery. 

[Title  as  in  Form  No.  1.] 

In  Equity. 

This  court  doth  order  that  an  injunction  be  awarded  to  restrain 
the  defendants,  W.  etc.,  respectively  (and  every  and  each  of  them), 
and  the  respective  servants,  agents  and  workmen  of  the  said  de- 
fendants (and  of  every  and  each  of  them),  from  stamping,  cutting 
or  engraving,  or  causing  or  permitting  to  be  stamped,  cut  or  engraved 
upon  any  tools  or  other  articles  manufactured  for  or  bought  or  sold 
by  them,  the  words  "  Collins  &  Co.,  Hartford,  Cast  Steel,  War- 
ranted," or  any  other  words  similar  to  or  only  colorably  differing 
from  such  words,  or  any  words  or  marks  so  contrived  as  to  repre- 
sent or  lead  to  the  belief  that  the  said  tools  or  other  articles  were 
the  manufacture  of  the  said  Collins  &  Co. ;  and  from  affixing  or 
causing  to  be  affixed  to  any  tools  or  other  articles  manufactured  for 
or  bought,  procured  or  sold  by  them,  or  otherwise  using  or  employ- 

1  Taylor  v.  Carpenter,  3  Story  C.  C.  458. 


CIRCUIT    COURT   FORMS    IN    EQUITY.  691 

ing,  or  causing  or  permitting  to  be  used  or  employed,  any  labels 
containing  the  words  (etc.,  as  above),  or  any  label  or  labels  similar 
to  or  only  colorably  differing  from  the  labels  made  or  used  by  the 
said  company  as  in  the  plaintiff's  bill  mentioned,  or  so  contrived 
and  prepared  as  to  represent  or  lead  to  the  belief  that  the  tools  or 
other  articles  manufactured  or  sold  by  the  defendants  were  the 
manufacture  of  the  said  company  ;  and  also  from  selling,  exporting, 
consigning  or  otherwise  disposing  of  any  tools  or  other  articles 
having  or  bearing  thereon  any  such  words,  marks  or  labels  as  in  the 
said  bill  mentioned,  or  any  other  words,  marks  or  labels  only  color- 
ably  differing  from  the  said  marks  and  labels  of  the  said  company, 
until,  etc. 


Form  No.  94. 


Order  for  temporary  injunction  to  restrain   defendant   until  ansM7er 

is  put  in. 

*  [Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

The  President  of  the  United  States  of  America  to  C.  D.,  and  to 
his  counsellors,  attorneys,  solicitors  and  agents,  and  each  and 
every  of  them,   Crreeting  : 

Whereas  it  has  been  represented  to  us  in  our  court  of  chancery, 
on  the  part  of  A.  B.,  complainant,  that  he  has  lately  exhibited  his 
bill  of  complaint  in  the  circuit  court  of  the  United  States  for  the 

circuity  against  you,  the  said  C.  D.,  to  be  relieved  touch- 
ing the  matters  therein  complained  of;  in  which  bill  it  is  stated, 
among  other  things,  that  you  are  combining  and  confederating  with 
others  to  injure  the  said  complainant  touching  the  matters  set  forth 
in  the  said  bill,  and  that  your  actings  and  doings  in  the  premises 
are  contrary  to  equity  and  good  conscience.  We,  therefore,  in  con- 
sideration thereof,  and  of  the  particular  matters  in  the  said  bill  set 
forth,  do  strictly  command  you,  the  said  C.  D.,  and  the  persons 
before  mentioned,  and  each  and  every  of  you,  under  the  penalty  of 
ten  thousand  dollars,  to  be  levied  upon  your  bonds,  goods  and 
chattels  to  our  use,  that  you  do  absolutely  desist  and  refrain  from 

until  you,  the  said  C.  D.,  shall  have  put  in  your  answer 


692  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

in  this  cause,  and  our  said  court  shall  have  made  further  order 
thereupon. 

AVitness,  ,  Chief  Justice  of  the  United  States,  at  , 

the  daj  of  ,  one  thousand  eight  hundred  and  forty- 

three. 

,  Register  [or  clerk]. 
,  Solicitor. 

Endorsed  "By  the  court."  ,  Register. 


Form  No.  95. 

Final  decree,  dismissing  bill  at  the  hearing. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

[Proceed  as  in  Form  No.  91,  ante.,  p.  688,  to  the  *,  and  continue:) 
That  the  complainant's  said  bill  of  complaint  be  and  the  same  is 
hereby  dismissed,  with  costs  to  the  defendant  to  be  taxed.  . 


Form  No.  96. 

Decretal  order.     Another  form. 

[Title  same  as  in  Form  No.  1.] 

In  Equity. 

This  cause  having  been  heretofore  heard  on  argument  by  counsel 
for  the  respective  parties,  on  the  pleadings  and  proofs,  and  the 
court  having  considered  the  same,  and  being  of  the  opinion  that  the 
complainant  was  the  first  and  original  inventor  of  the  as 

described  and  claimed  in  his  patent,  adjudges  and  decrees  that  the 
defendant  has  infringed  the  said  patent  in  making  and  vending  the 
[patented  article,  whatsoever  it  may  be],  as  charged  in  the  said  bill 
of  complaint,  and  that  the  said  complainant  is  entitled  to  have  a 
perpetual  injunction  to  restrain  said  defendant,  his  agents,  servants, 
and  all  claiming  or  holding  under  or  through  him,  from  making, 
vending  or  using,  or  in  any  manner  disposing  of  [the  patented  arti- 


CIRCUIT   COURT    FORMS    IN    EQUITY.  693 

cle]  embracing  the  invention  or  improvements  described  in  said 
letters  patent,  namely  [describe  the  patented  article]. 

And  it  is  further  adjudged  and  decreed  that  the  cause  be  referred 
to  ,  esquire,  the  clerk  of  this  court  [or  , 

esquire,  a  master  pro  hac  vice],  to  ascertain  and  report  the  number 
of  [describe  patented  article]  made  and  also  the  number  sold  by  the 
said  defendant  since  the  day  of  ,  A.  D.  18     , 

and  the  damages  complainant  has  sustained,  or  use  and  profits 
the  defendant  has  derived  by  reason  of  such  infringement  since 
the  time  last  aforesaid. 

And  upon  the  coming  in  and  confirmation  of  the  said  report  that 
said  complainant  have  a  decree  and  execution  for  the  amount  found 
due  to  him,  and  also  for  the  costs  in  this  suit  to  be  taxed. 


Form  No.  97. 

IV^aster's   summons. 

[Title  of  cause  same  as  in  Form  No.  1.] 
In  Equity. 

In  pursuance  of  the  authority  contained  in  a  decretal  order,  made 
in  the  above-entitled  cause  by  the  Hon.  ,  one  of  the 

judges  of  this  court,  at  a  term,  held  at  ,  in  said 

district,    on  the  day   of  ,    18     ,    I,    the  sub- 

scriber, one  of  the  masters  of  the  said  court,  do  hereby  summon 
you,  ,  as  defendant  [or  to  appear  for  a  personal  examina- 

tion and  to  produce  all  books,  vouchers  and  documents  concerning 
accounts  in  this  suit,  or  A.  B.  and  C.  D.  as  witnesses],  to  appear 
before  me,  ,  in  said  district,  on  the  day  of  , 

18     ,  at  o'clock  in  the  noon,  to  attend  a  hearing 

before  me,  the  said  master,  of  the  matters  in  reference  in  the  said 
cause,  to  be  had  by  virtue  of  the  order  of  the  said  court  above  re- 
ferred to.     And  hereof  you  are  not  to  fail  at  your  peril. 

C  H.,  Master  in  equity. 

Dated  the  day  of  ,  18     . 

I  direct  the  above  summons  to  be  served  previous  to  the  return 
thereof,  days. 

C.  H.,  Master  in  equity. 


694         federal  pleading,  practice  and  procedure. 

Form  No.  98. 

Master's    report. 

[Title  as  in  Form  No.  1.] 
In  Equity. 

To  the  Hon.  ,  judges  in  said  court: 

In  pursuance  of  a  decretal  order  made  and  entered  in  this  cause, 
and  bearing  date  on  the  day  of  ,  A.  D.  18     ,  at 

a  stated  term  of  this  court  held  at  the  ,  in  the  city  of 

,  by  which  it  was  referred  to  C.  H.,  Esq.,  of  , 

one  of  the  masters  of  this  court,  to  take  and  state  an  account  of  the 
use,  gains  and  profits  by  defendants  in  the  manufacture  and  sale 
of  [machine  or  other  article]  described  in  the  plaintiff's  bill  of 
complaint,  and  which  the  complainant  would  have  received  but  for 
the  infringements  and  unlawful  acts  and  doings  of  the  said 
defendants  as  specified  therein,  I,  the  subscriber,  a  master  in 
said  court,  do  respectfully  report  that  I  have  proceeded  to  in- 
vestigate the  matters  so  referred  to  me,  and  that,  pursuant  to  a 
summons  duly  issued,  I  have  been  attended  by  the  plaintiff's  solic- 
itor, G.  F.,  Esq.,  and  also  by  C.  D.  and  E.  F.,  defendants,  in  the 
city  of  ,  aforesaid,  where,  after  taking  due  proofs,  I  find 

and  report  that  the  amount  thereof  is  the  sum  of  dollars. 

I  do,   therefore,   respectfully  report    that   the  said  defendants 
should  be  decreed  to  pay  the  said  plaintiff  the  sum  of 
dollars,  besides  costs  to  be  taxed. 

I  respectfully  refer  to  schedules  A,  B,  C,  hereto   annexed,  as 
making  a  part  of  this  my  report. 

All  which  is  respectfully  submitted. 

C.  H.,  United  States  master. 

Dated, 


Form  No.  99. 

Exceptions  to  report. 

[Title  as  in  Form  No.  1.] 

In  Equity. 

Exceptions  taken  by  the  to  the  report  made  herein 

by  C.  H.,  the  master  pro  hac  vice,  to  whom  this  cause  was  re- 


CIRCUIT   COURT   FORMS    IN    EQUITY.  695 

ferred  by  an  order  of  this  court  on  the  day  of  , 

A.  D.  18       ,  and  bj  the  decree  made  herein  on  the  day  of 

,  A.  D.  18       ,  which  report  bears  date  the  day 

of  ,  A.  D.  18 

First  exception.  For  that  the  master  in  his  report,  etc.  [here 
state  exception]. 

Second  exception.  For  that,  etc. 


Form  No.  100. 

Order  for  a  feigned  issue,  etc. 

[Title  as  in  Form  No.  1,] 

In  Equity. 

A  motion  having  been  made  in  this  cause  on  the  part  of  the 
defendants  for  a  feigned  issue  to  try  the  validity  of  complainant's 
patent  for  an  improvement  in  ,  and  also  for  leave  to 

amend  the  answer  on  file,  or  to  file  a  supplemental  answer,  on 
hearing  Mr.  ,  on  the  part  of  the  defendants,  and  Mr. 

,  on  the  part  of  the  complainant,  ordered  :  that  a  feigned 
issue  be  granted,  and  that  the  following  questions  be  tried  at  law  at 
the  next  circuit  court  of  the  United  States,  to  be  held  at  , 

viz. : 

1st.  Whether  or  not  the  complainant  is  the  first  and  original 
inventor  of  the  improvement  in  ,  for  which  the 

above  patent  has  been  granted  ? 

2d.  Whether  or  not  the  manufactured  by  the 

defendants  are  substantially  identical  with  those  of  the  complainant 
in  their  construction  and  mode  of  operation  ? 

3d.  If  an  infringement  is  made  out  by  the  complainant,  what 
amount  of  damages  has  been  sustained  by  him  ? 

And  it  is  further  ordered  that  the  defendants  have  leave  to  file 
an  amended  answer  or  a  supplemental  answer  to  the  bill  filed  within 
thirty  days  from  the  service  of  a  copy  of  this  order. 

And  it  is  further  ordered  that  the  defendants  give  the  same 
notice  of  the  defence  on  the  trial  of  the  above  issue  at  law,  and 
within  the  same  time  that  would  be  required  if  the  trial  was  in  a 
suit  at  law. 


696  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 


Form  No.  101. 

Final  decree. 

[Title  as  in  form  No.  1.] 
In  Equity. 

This  cause  having  been  heretofore  brought  to  a  hearing  upon  the 
report  of  ,  Esq.,  of  the  court,  to  whom  it  was 

referred,  to  ascertain  and  report  the  number  of  embracing 

the  principle  of  the  complainant's  invention,  as  described  and 
claimed  in  his  patent,  as  mentioned  and  set  forth  in  the  bill  of  com- 
plaint in  this  cause  that  had  been  made,  and  also  the  number  sold 
by  the  said  defendants,  or  either  of  them,  since  the  day  of 

,  18  ,  and  the  damages  the  complainant  had  sustained, 
or  use  and  profits  the  defendant,  ,  had  derived  by  reason 

of  the  infringement  of  such  patent  since  the  time  last  aforesaid, 
which  report  bears  date  ;  and  also  upon  exceptions  taken 

to  the  said  report  on  the  part  of  said  complainant;  and  also  on  the 
part  of  the  said  defendants,  and  upon  the  equity  reserved,  and  the 
said  cause  having  been  argued  by  ,   counsel  for  the 

said  complainant,  and  by  ,  counsel  for  the  defendants, 

and  due  deliberation  had  thereon  : 

It  is  ordered,  adjudged  and  decreed,  and  this  court  doth  hereby 
order,  adjudge  and  decree,  that  [here  state  the  decree]. 

It  is  further  ordered,  adjudged  and  decreed,  and  this  court  doth 
further  order,  adjudge,  determine  and  decree,  that  the  said  de- 
fendants are  respectively  liable  to  the  said  complainant. 

And  it  is  further  ordered,  adjudged  and  decreed,  and  this  court 
doth  order,  adjudge  and  decree,  that  each  of  the  said  defendants 
pay  to  the  said  complainant  [here  state  the  amount  adjudged]. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the  said 
defendants  pay  to  the  said  complainant  his  costs  in  this  suit,  to  be 
taxed,  and  that  have  execution  for  such  costs,  and  for  the 

sums  above  decreed,  to  be  paid  as  aforesaid. 


circuit  court  forms  in  equity.  697 

Form  No.  102. 

Taxed  costs. 

[Title  as  in  Form  No.  1.] 
In  Equity. 

Solicitor's  fee,       .         . $20  00 

Disbursements : 
Paid  postages  and  express  charges,  .... 

Paid  for  certified  papers,         ...... 

Depositions  at  $2  50,  taken  and  used,     .         .         .         .      ' 

Marshal's  fees : 
Serving  subpoenas  at  $2  each,         ..... 

Travel  at  6  cts.,  going  from  place  of  service  to  place  of 
return,         miles,  .         .         .         .         .         .  •       . 

Clerk's  fees : 
Filing  bill  of  complaint,  10  cts. ;  entering  order,  15  cts.,  25 

Copying  order,  10  cts.  ;  certificate  and  seal,  35  cts.,        .  45 

Issuing  subpoena,  .......         1  00 

Copies  subpoenas,  2  folios,  20  cts. ;  certificate  35  cts.,  being 
at  55  cts.  per  copy,         ...... 

Filing  subpoena  and  entering  return  of  service,        .          .  25 

Copying  order  on  defendant's  appearance,  1  folio  certified,  45 

Copying  defendant's  answer;  folio  at  10  cts.  and  certifi- 
cate 35  cts.,  ....... 

Filing  replication,  .......  10 

Filing  depositions  and  papers  at  10  cts.  each, 
Issuing  injunction,  %1 ;  copies,  4  folios  certified  at  75  cts 
Copying  depositions,  folios  at  10  cts.,  $         ;  certificate 
35  cts.,  ....... 

Making  and  enrolling  decree,  folios  at  15  cts., 
Copying  enrolled  decree,     folios  at  10  cts.,  %      ,  and  cer 
tificate  35  cts.  (if  required),    .... 

Final  fee  on  issue,  docketing,  indexing,  etc.,  .  .         .         3  00 

Issuing  execution,  $1 ;  filing  execution  and  entering  re- 
turn, 25  cts.,  .         .         .         .         .         .         .         1  25 


Taxed  at  $  this  day  of 

A.  D.  18     . 


Clerk. 


698         federal  pleading,  practice  and  procedure. 

Form  No.  103. 

Perpetual  injunction. 
In  JEquity. 

The  President  of  the  United  States  of  America  to  , 

and  to  counsellors,  attorneys,  solicitors  and  agents, 

and  each  and  every  of  them,  Greeting : 

Whereas  it  has  been  represented  to  us  in  our  circuit  court  in  equity 
for  the  district  of  New  York,  on  the  part  of  , 

plaintiff,  that  have  lately  exhibited  bill  of  complaint  in 

our  said  circuit  court  for  the  district  of  New  York,  against 

you,  the  said  ,  to  be  relieved  touching  the  matters  therein 

complained  of;  in  which  bill  it  is  stated,  amongst  other  things,  that 
you  are  combining  and  confederating  with  others  to  injure  the  said 
plaintiff  touching  the  matters  set  forth  in  the  said  bill,  and  that 
your  actings  and  doings  in  the  premises  are  contrary  to  equity  and 
good  conscience :  We,  therefore,  in  consideration  thereof,  and  of 
the  particular  matters  in  the  said  bill  set  forth,  do  strictly  command 
you,  the  said  ,  and  the  persons  before  mentioned,  and 

each  and  every  of  you,  under  the  penalty  of  ten  thousand  dollars, 
to  be  levied  on  your  lands,  goods  and  chattels,  to  our  use,  that  you 
do  absolutely  desist  and  refrain  from  until  the  further 

order  of  our  said  circuit  court. 

Witness  ,  Chief  Justice  of  the  Supreme  Court  of  the 

United  States,  at  the  city  of  ,  the  day  of  , 

one  thousand  eight  hundred  and 

' .      ,  Clerk. 
G.  F.,  Solicitor. 

Form  No.  104. 

Revised  decree  ;   form  of  entry. 

[Title  of  cause  as  in  Form  No.  1.] 

In  Equity. 

The  above-named  defendants,  ,  heretofore  duly  appealed 

to  the  Supreme  Court  of  the  United  States,  from  certain  parts  of 
the  final  decree  made  by  this  court  in  this  cause,  and  bearing  date 
the  ;  and  the  said  Supreme  Court  of  the  United  States, 


CIRCUIT   COURT    FORMS    IN    EQUITY.  699 

having  at  the  term,  18       ,  duly  heard  the  said  appeal 

upon  the  transcript  of  the  record,  and  having  thereupon  ordered, 
adjudged  and  decreed  that  so  much  of  the  said  decree  of  this  court 
as  allows  the  said  complainant  costs,  and  the  sum  of  for 

interest  on  the  profits  found  for  him,  was  erroneous,  and  should  be 
reversed  and  annulled,  and  that  the  residue  of  the  said  decree  of 
this  court  should  be  affirmed ;  and  the  said  Supreme  Court  having 
remanded  the  said  cause  to  this  court,  with  instructions  that  such 
proceedings  be  had  in  said  cause  as  according  to  right  and  justice, 
and  the  laws  of  the  United  States,  ought  to  be  had,  the  said  appeal 
notwithstanding,  which  said  decree,  order  and  instructions  appear 
to  this  court  by  the  mandate  of  the  said  Supreme  Court : 

Now,  therefore,  on  filing  the  said  mandate,  ordered  [here  enter 
as  required  by  the  mandate]. 


Form  No.  105. 

Enrollment  of  decree. 

At  a  term  of  the  circuit  court  of  the  United  States  for 

the  district  of  ,  held  at  the  city  of  ,  in  the 

said  district,  on  the  day  of  ,  A.  D.  18 

Present: — The  honorable  ,  one  of  the  judges  of  said 

court. 

A.  B.      ") 
V.  V  In  equity. 

C.  D.      J 

The  plaintiff,  ,  filed  his  bill  of  complaint,  which  is  hereto 

annexed,  on  the  day  of  ,  18      ,  against  the  de- 

fendant, ;  a  subpoena  to  appear  and  answer  in  said  cause  was 

thereupon  issued,  returnable  on  the  day  of  ,  18      , 

and  was  served  personally  previous  to  the  return  day  thereof  on  the 
defendant. 

The  defendant    appeared   in   said    cause   by  as    his 

solicitor. 

On  the  day  of  ,  18      ,  the  defendant  filed  his 

answer  to  said  bill,  which  answer  is  hereto  annexed. 

A  replication   to  said  answer  was  filed  on   the  day  of 

,  18       ,  which  replication  is  hereto  annexed. 

That  on  the  day  of  ,  18      ,  a  report,  and   the 


'00 


FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 


oral  and  written  evidence,  proofs  and  exhibits  referred  to  therein, 
as  hereto  annexed,  were  all  duly  filed. 

On  the  day  of  ,  18      ,  the  defendant  filed  his 

exceptions  to  said  report,  which  exceptions  are  hereunto  annexed. 

On  the  day  of  ,  18      ,  the  plaintiff"  filed  his 

exceptions  to  said  report,  which  exceptions  are  hereunto  annexed. 

On  the  day  of  ,  18      ,  the  said  cause  having 

been  previously  brought  to  a  hearing,  a  final  decree  was  made  and 
entered  therein  in  the  words  and  figures  following,  to  wit :  [Here 
insert  the  decree.] 

Whereupon  the  said  pleadings,  proofs,  orders  and  final  decree 
and  tax  costs,  together  with  other  papers  in  said  cause,  are  duly 
annexed  hereto,  and  this  decree  is  duly  signed,  filed  and  enrolled, 
pursuant  to  the  rules  and  practice  of  the  court. 

E.  K.,  Judge  [or  clerk]. 


Form  No.  106. 

Taxed  costs  to  plaintiff ;   lavr. 
United  States  circuit  court,  district  of  New  York. 

A.  B.      ^ 

V.  V  Plaintiff's  costs  on  trial,  after  verdict. 

C.  D.      J 
Attorney's  fee  by  statute,         ...... 

Disbursements : 
Taking  4  depositions  at  $2  50  each,         .... 
Witnesses'  fees  paid,  viz..  A,  B,  C,  one  day's  attendance, 

$1  50  each,  is  .... 

Miles  travel,  at  10  cts.  one  way. 
Certified  copy  papers  obtained  and  used,  . 
Postage  and  express  charges  paid  out. 
Models  paid  for  and  used  in  court,  if  any, 

3IarshaV  s  fees : 
Serving  subpoenas  at  50  cts.  each  witness. 
Travel  for  service  at  6  cts.  one  way,  each  subpoena,  . 

ClerFs  fees : 
Filing  narr,  10  cts. ;  entering  rule  to  plead,  15  cts., 
Copying  rule  to  plead,  10  cts. ;  certificate  and  seal,  35  cts 


$20  00 


10  00 


50 
40 
00 
24 
00 

50 

80 

25 
45 


CIRCUIT  COURT   FORMS   IN   EQUITY. 


701 


Copying  rule  on  appearance  of  defendant,  10  cts. ;  certifi 

cate  and  seal,  35  cts.,        ..... 
Copying  pleas  or  papers  if  ordered,  at  10  cts.  per  folio 

and  certified,  .         . 
Oaths  to  witnesses  on  trial,  at  10  cts.  each, 
Filing  papers  at  10  cts. ;  each  order  at  15  cts.. 
Making  dockets  and  indexes,  and  taxing  costs, 
Issuing  execution,  ...... 


45 

3  10 
60 

2  10 

3  00 
1  00 


Aggregate, 


Taxed  at  $ 


this 


day  of 


,18 


Clerk. 


Form  No.  107. 

Execution. 

The  President  of  the  United  States  of  America  to  the  marshal  of 

the  .  district  of  New  York,   Greeting: 

We  command  you  that  of  the  goods  and  chattels  of  , 

in  your  district,   you  cause   to  be   made  %         ,   the 
amount  of  a  certain  judgment  which  ,  plaintiff 

lately  in    the    circuit  court   of  the  United    States   of 
America,  in  the  second  circuit  for  the 
district  of  New  York,  recovered  against  , 

[l.  s.]  and  which  in  the  said  court  were  adjudged  to  the  said 
plaintiff  for  [damages  or  debt]  which  he  had  sustained, 
as  well  as  for  %  ,  costs  and  charges  by  him  about 

said  suit  in  that  behalf  expended;  whereof  the  said  de- 
fendant is  convicted,  as  appears  to  us  of  record. 
And  if  sufficient  goods  and  chattels  of  the  said  defendant,  , 

cannot  be  found  in  your  district,  then  we  command  you  that  you 
cause  the  [damages  or  debt]  aforesaid  to  be  made  of  the  lands  and 
tenements  and  real  estate  whereof  the  said  ,  defendant, 

was  seized,  on  the  day  of  ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  ,  or  at  any  time  after- 

wards, in  whose  hands  soever  the  same  may  be ;  and  have  you  that 
money  before  the  judges  of  the  said  court,  at  the  ,  on  the 

day  of  ,  18     ,  to  render  to  the  said  plaintiff  for 


702 


FEDERAL    PLEADING,    PRACTICE   AND   PROCEDURE. 


[damages  or  debt]  aforesaid.     And  have  you  then  and  there  this 
writ. 

Witness  the  honorable  ,  Chief  Justice  of  the  Supreme 

Court  of  the  United  States,  at  the  ,  in  the  said  district,  the 

day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  ,  in  the  year  of  the  independ- 

ence of  the  United  States  of  America. 

,  Clerk. 
,  Attorney. 


Form  No.  108. 

'  Taxed  costs,  non  pros. 

United  States  circuit  court,  district  of 

A.   B.      ^ 

C.    D.      J 

Bill  of  costs  on  judgment  of  non  pros  (in  case  removed  or  other- 
wise). 

Attorney's  fees. 
Before  issue,  ........  $10  00 

Disbursements,        ....... 

3IarsliaVsfees. 
Serving  certiorari  at  $2  per  defendant,     . 
Travel  to  place  of  return  at  6  cts.,  ... 

Clerk's  fees. 
Filing  petition,  10  cts.,  and   entering  rule  for  certiorari 
15  cts.,    ........ 

Copy  rule,  10  cts.;  certificate  and  seal,  35  cts., 
Issuing  certiorari  in  duplicate  on  removal  from  state  court 
at  $1  each,       ....... 

Filing  certiorari  and  entering  return  ;  and  filing  precept 

and  entering  rule  on  appearance, 
Certified  copy,  45  cts. ;  entering  rule  for  pleading  de  novo 
15  cts.,    ........ 

Copy  certified,  45  cts. ;  filing     papers  at  10  cts.,  $     ;  rule 
for  judgment,  15  cts.,        ..... 

Copy  rule  certified,  45  cts. ;  final  fee  for  making  dockets 
indexes,  etc.,  $1,      ...... 


25 
45 

2  00 

50 

60 

1  45 


CIRCUIT  COURT  FORMS  IN  EQUITY.  703 

Making  judgment  record,         folios  at  15  cts., 
Issuing  execution,  $1 ;    filing  execution  and  entering  re- 
turn, 25  cts., 1  25 


Form  No.  109. 

Taxed  costs,  default,  etc. 

United  States  circuit  court,  district  of 

A.  B.       1 

r 

C.  D.       J 
Plaintiff's  costs  on  default,  writ  of  inquiry  and  judgment. 

Attorney's  fees. 

Before  issue, $10  00 

Disbursements,        ........ 

Marshal's  fees. 

Executing  writ  of  inquiry,       .         .  .  .         .         .       5  00 

Serving  writ  (or  capias  if  any),         .  .  .  .  .       2  00 

Travel  at  6  cts.  per  mile,  miles,  .  . 

Clerk's  fees. 
Filing  declaration,  10  cts. ;  entering  rule  to  plead,  15  cts. ; 

copy  rule,  10  cts.;  certificate  and  seal,  35  cts.,  70 

Entering  default,  15  cts. ;  copy  rule  on  default,  10  cts. ; 

certificate  and  seal,  35  cts., 
Clerk  attending  on  inquiry  one  day, 
Issuing  writ  of  inquiry,  $1,     .... 

Making  dockets,  indexes,  etc., 

Making  judgment  record,  folios  at  15  cts.. 

Issuing  execution,  ...... 

Issuing  writ  of  possession  (if  done), 

Filing  and  entering  return  of  execution, 

(Filing  and  entering  return  of  writ  of  possession) 


60 

.       5 

00 

.       1 

00 

.       1 

00 

.       1 

00 

.       1 

00 

25 

25 

$ 

FORMS  m  ADMIRALTY. 


Form  No.  110. 

Libel  for  salvage. 

District  Court  of  the  United  States  for  the   Southern   District  of 

New  York. 

Peter  Hart  et  al.,  libellants,      "^ 

V.  y  In  admiralty. 

The  Ship  Waverly.  j 

To  the  honorable  Samuel  B.  Stevens,  judge  of  the  district  court 
of  the  United  States  in  and  for  the  southern  district  of  New 
York. 

The  libel  of  Peter  Hart,  owner  of  the  American  brig  the  Alaska, 
of  New  York,  and  of  R.  W.  Fielding,  master  of  the  said  brig,  for 
themselves  and  all  others  entitled,  against  the  ship  Waverly,  her 
tackle,  apparel,  furniture  and  cargo,  and  against  all  persons  inter- 
vening for  their  interests  therein  in  a  cause  of  salvage,  civil  and 
maritime,  alleges  as  follows  : 

First.  That  on  the  twenty-seventh  day  of  August  last  past,  the 
said  R.  W.  Fielding  being  on  a  voyage  in  the  said  brig  the  Alaska, 
from  Havana,  in  the  island  of  Cuba,  to  Cadiz,  in  Spain,  discovered 
a  ship  dismasted  and  apparently  deserted,  whereupon  he  hauled  up 
for  and  boarded  her ;  that  he  found  the  said  ship,  which  proved  to 
be  the  British  ship  Waverly,  of  London,  with  twelve  feet  of  water 
in  her  hold,  totally  dismasted  and  entirely  abandoned  by  her  captain 
and  crew ;  that  he  found  no  papers  on  board  the  said  ship,  but  she 
had  a  full  cargo  of  rum,  sugar  and  other  West  India  produce  on 
board. 

Second.  That  the  said  R.  W.  Fielding  thereupon  took  the  said 
ship  Waverly  in  tow  and  made  for  the  port  of  New  York,  where 
he  arrived  with  the  said  ship  on  the  twelfth  day  of  September,  in- 
stant, the  crew  of  the  brig  being  almost  worn  out  with  fatigue  in 
pumping  out  the  said  ship  and  other  work  done  on  board  of  her, 
and  they  are  entitled  to  a  reasonable  share  of  said, ship  and  cargo 
for  the  salvage  thereof. 


FORMS    IN   ADMIRALTY.  705 

Third.  That  all  and  singular  the  pi'emises  are  true,  and  within 
the  admiralty  and  maritime  jurisdiction  of  the  United  States  and  of 
this  honorable  court. 

Wherefore  the  libellants  pray  that  process  in  due  form  of  law, 
according  to  the  course  of  this  honorable  court  in  cases  of  admiralty 
and  maritime  jurisdiction,  may  issue  against  the  said  ship  Waverly, 
her  tackle,  apparel,  furniture  and  cargo,  and  that  all  persons 
claiming  any  interest  therein  may  be  cited  to  appear  and  answer 
upon  oath  all  and  singular  the  matters  aforesaid,  and  that  this  hon- 
orable court  will  be  pleased  to  decree  to  the  libellants  a  reasonable 
and  proper  salvage,  in  proportion  to  the  value  of  said  vessel  and 
cargo,  and  that  the  said  ship,  her  tackle,  apparel,  furniture  and 
cargo,  may  be  condemned  and  sold  to  pay  said  salvage,  with  costs, 
charges  and  expenses,  and  that  the  libellants  may  have  such  other 
and  further  relief  in  the  premises  as  in  law  and  justice  they  may 
be  entitled  to  receive. 

Peter  Hart. 
R.  W.  Fielding. 

Sworn  to  September  16,  1829,  before  me. 

Fred.  F.  Rich,  Clerk  of  district  court. 

Edward  E.  DeForest,  Proctor. 

A.  E.  McGorrish,  Advocate. 


Form  No.  111. 

Stipulation  for  costs  to  be  given  by  the  libellants  on  filing  the 
foregoing  libel. 

District  Court  of  the  United  States  for  the  Southern  District  of 

New  York. 

Peter  Hart  et  al.,  libellants,       "| 

V.  >  In  admiralty. 

The  Ship  Waverly.  J 

Whereas  a  libel  was  filed  in  this  court  on  the  16th  day  of  Sep- 
tember, 1829,  by  Peter  Hart  and  R.  W.  Fielding,  against  the  ship 
Waverly,  her  tackle,  apparel,  furniture  and  cargo,  for  the  reasons 
and  causes  in  the  said  libel  mentioned,  and  praying  that  the  same . 
may  be  condemned  and  sold  to  answer  the  prayer  of  the  libellants; 
and  the  said  libellants  and  William  Thompson,  surety  and  parties 
45 


706  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

hereto,  hereby  consenting  and  agreeing  that  in  case  of  default  or 
contumacy  on  the  part  of  the  libellants  or  their  surety,  execution 
may  issue  against  their  goods,  chattels  and  lands  for  the  sum  of 
two  hundred  and  fifty  dollars. 

Now,  therefore,  it  is  hereby  stipulated  and  agreed,  for  the  benefit 
of  whom  it  may  concern,  that  the  stipulators  undersigned  shall  be 
and  are  bound  in  the  sum  of  two  hundred  and  fifty  dollars,  con- 
ditioned that  the  libellants  above  named  shall  pay  all  such  costs  as 
shall  be  awarded  against  them  by  this  court. 

Peter  Hart. 

R.  W.  Fi'elding. 

William  Thompson. 
Taken  and  acknowledged  this  16th  day  of   September,  1829, 
before  me. 

Fred.  F.  Rich,  Clerk. 


.  Form  No.  112. 

J^ttachment  and  monition   against  a  ship  and  cargo  in  rem,  on  the 

foregoing  libel. 

Peter  Hart  et  al.,  libellants,       "| 

V.  V  In  admiralty. 

The  Ship  Waverly.  J 

The  President  of  the  United  States  of  America  to  the  marshal  of 
the  southern  district  of  New  York,   Greeting: 

Whereas  a  libel  hath  been  filed  in  the  district  court  of  the  United 
States  for  the  southern  district  of  New  York,  on  the  16th  day  of 
September,  in  the  year  of  our  Lord  eighteen  hundred  and  twenty- 
nine,  by  Peter  Hart  and  others,  against  the  ship  Waverly,  her 
tackle,  apparel  and  furniture,  and  cargo,  in  a  cause  of  salvage,  civil 
and  maritime,  for  the  reasons  and  causes  in  the  said  libel  mentioned, 
and  praying  the  usual  process  and  monition  of  the  said  court  in  that 
behalf  to  be  made,  and  that  all  persons  interested  in  the  said  ship 
or  vessel,  her  tackle,  etc.,  and  cargo,  may  show  cause  why  the 
same  should  not,  for  the  causes  in  the  said  libel  mentioned,  be 
condemned  and  sold  to  pay  the  demands  of  the  libellant : 

You  are,  therefore,  hereby  commanded  to  attach  the  said  vessel 
or  ship,  her  tackle,  etc.,  and  cargo,  and  to  detain  the  same  in  your 


FORMS   IN    ADMIRALTY.  707 

custody  until  the  further  order  of  the  court  respecting  the  same, 
and  to  give  due  notice  to  all  persons  claiming  the  same,  or  knowing 
or  having  anything  to  say  why  the  same  should  not  be  condemned 
and  sold  pursuant  to  the  prayer  of  the  said  libel,  that  they  be  and 
appear  before  the  said  court,  to  be  held  in  and  for  the  southern 
district  of  New  York,  on  the  first  Tuesday  of  October  next,  at 
eleven  o'clock  in  the  forenoon  of  the  same  day,  if  the  same  shall 
be  a  day  of  jurisdiction,  otherwise  on  the  next  day  of  jurisdiction 
thereafter,  then  and  there  to  interpose  a  claim  for  the  same,  and  to 
make  their  allegations  in  that  behalf.  And  what  you  shall  have 
done  in  the  premises  do  you  then  and  there  make  return  thereof, 
together  with  this  writ. 

Witness  the  honorable  Samuel  B.  Stevens,  judge  of  the  said 
court,  at  the  city  of  New  York,  in  the  southern  district  of  New 
Y'ork,  this  16th  day  of  September,  in  the  year  of  our  Lord  eighteen 
hundred  and  twenty-nine,  and  of  our  independence  the  fifty-sixth. 

Fred.  F.  Rich,  Clerk. 

Edward  E.  De  Forest,  Proctor  for  libellants. 


Form  No.  113. 

Claim   by  the   agents  of  foreign   underwriters   to  vessel   and   cargo 
in  case  of  salvage  of  a  foreign  ship. 

United  States  District  Court  for  the  Southern  District  of  New 

York. 

Peter  Hart  et  al.       ^ 

V.  V  In  admiralty. 

The  Ship  Waverly.   J 

To  the  honorable  ,  judge  of  the  district  court  of  the  United 

States  for  the  southern  district  of  New  York. 

The  answer  and  claim  of  H.  R.  Clay  and  G.  W.  Clay,  of  the 
city  of  New  York,  merchants,  intervening  for  the  interests  of  their 
principals,  to  the  libel  of  Peter  Hart  and  R.  W.  Fielding,  alleges  as 
follows : 

First.  That  these  defendants  admit  that  on  the  twenty-seventh 
day  of  August  last  past,  the  said  R.  W.  Fielding  was  the  master  of 
the  brig  Alaska,  of  New  York,  and  that  he  was  then  in  the  said  ship 


708  FEDERAL    PLEADING,    PKACTICE    AND    PROCEDURE. 

on  a  voyage  from  Havana,  in  Cuba,  to  Cadiz,  in  Spain ;  but  whether 
he  then  discovered  a  ship  dismantled  and  apparently  deserted,  and 
whether  he  then  hauled  up  for  her  and  boarded  her,  and  whether 
he  found  the  said  ship  with  twelve  feet  of  water  in  her  hold,  and 
totally  dismantled  and  entirely  abandoned  by  her  captain  and  crew, 
and  whether  the  said  ship  proved  to  be  the  British  ship  Waverly, 
of  London,  and  whether  the  said  R.  W.  Fielding  found  any  papers 
in  the  said  ship  or  not,  these  respondents  know  not,  and  therefore 
can  neither  admit  nor  deny,  but  leave  the  same  to  be  proved  by  the 
said  libellant. 

Second.  That  they  admit  it  to  be  true  that  the  said  R.  W. 
Fielding  arrived  at  the  port  of  New  York  on  the  twelfth  day  of 
September,  in  the  year  of  our  Lord  eighteen  hundred  and  twenty- 
nine,  and  that  he  had  the  ship  Waverly,  of  London,  in  tow,  and 
that  the  said  ship  had  a  full  cargo  of  rum,  sugar  and  other  West 
India  produce  on  board,  and  that  said  ship,  when  so  brought  in, 
was  dismantled  and  disabled  ;  but  whether  the  crew  of  the  said  brig 
Alaska  were  or  were  not  almost  worn  out  with  fatigue  in  pumping 
out  the  said  ship,  and  with  other  work  done  on  board  of  her,  these 
respondents  know  not,  and,  therefore,  leave  the  same  to  be  proved 
by  the  said  libellants. 

Tliird.  That  by  a  commission  dated  the  second  day  of  July,  in 
the  year  of  our  Lord  eighteen  hundred  and  seventeen,  signed  by 
James  Fordy,  chairman,  and  William  Bedford,  junior,  secretary  of 
the  committee  for  managing  the  offices  of  the  underwriters,  at 
Wright's,  in  London,  in  that  part  of  the  United  Kingdom  of  Great 
Britain  and  Ireland  called  England,  these  respondents  were  ap- 
pointed to  act  as  agents  for  the  subscribers  at  Wright's,  at  the  port, 
of  New  York,  and  custom-house  district,  subject  to  the  instructions 
in  the  said  commission  mentioned;  and  that  by  the  said  instruc- 
tions they  are,  amongst  other  things,  directed,  "  when  salvage  or 
remuneration  is  claimed  for  assistance  rendered  to  vessels,  to  attend 
the  meeting  of  the  commissioners,  magistrates  or  other  persons 
legally  authorized  to  determine  the  amount,  in  order  to  rebut  any 
exaggerated  statements  on  the  part  of  the  salvors,  by  the  evidence 
of  the  master  and  crew;"  and  they  are  likewise  authorized  and 
empowered  by  the  said  commission  to  attend  to  the  interests  of  the 
subscribers  at  Wright's  in  general ;  as  by  the  said  commission  now 
in  the  possession  of  these  respondents  will  more  fully  and  at  large 


FORMS    IN    ADMIRALTY.  709 

appear,  and  to  which,  for  greater  certainty,  these  respondents  pray 
leave  to  refer. 

Fourth.  That  they  are  likewise  the  agents  for  the  underwriters 
at  Liverpool,  in  that  part  of  the  United  Kingdom  of  Great  Britain 
and  Ireland  called  England,  and  for  the  underwriters  in  Glasgow, 
in  that  part  of  the  United  Kingdom  of  Great  Britain  and  Ireland 
called  Scotland,  under  two  several  commissions  of  the  same  date 
and  with  the  like  authority  and  instructions  as  mentioned  in  the 
said  commission  from  the  underwriters  at  Wright's,  in  London,  now 
in  the  possession  of  these  respondents,  as  by  reference  thereto  had 
will  more  fully  and  at  large  appear,  and  to  which.  Tor  greater  cer- 
tainty, these  respondents  pray  leave  to  refer. 

Fifth.  That  they  have  no  doubt  that  the  ship  Waverly  or  her 
cargo,  or  both,  or  some  part  thereof,  were  or  was  insured  at  some 
or  one  of  the  said  places,  by  some  or  all  of  the  underwriters  there- 
in, and  they  have  no  doubt  but  that  the  said  vessel  or  her  cargo, 
or  both,  or  some  part  thereof,  have  or  hath  been  abandoned  by  the 
persons  interested  therein,  to  the  said  underwriters,  or  some  or  one 
of  them  ;  but  these  respondents  cannot  speak  on  this  point  with 
absolute  certainty,  but  only  to  the  best  of  their  belief,  inasmuch 
as  a  sufficient  time  has  not  elapsed  since  the  twelfth  day  of  Septem- 
ber, eighteen  hundred  and  tw^enty-nine,  when  the  said  ship  was  as 
aforesaid  brought  into  the  said  port  of  New  York,  to  communicate 
the  said  circumstances  to  the  said  several  insurers  or  any  of  them, 
and  to  hear  from  the  said  several  underwriters,  or  any  of  them,  on 
the  same  subject. 

Sixth.  That  immediately  after  the  said  vessel  and  her  cargo  were 
brought  into  the  said  port  of  New  York  as  aforesaid,  they  wrote  to 
the  said  underwriters  in  London,  informing  them  of  the  circum- 
stances of  the  case,  as  far  as  was  known  to  these  respondents,  and 
requesting  information  from  the  said  underwriters,  of  their  rights 
and  interest  in  and  to  the  said  vessel  and  her  cargo,  or  any  part 
thereof.  That  on  the  sixteenth  day  of  September,  in  the  year  of  our 
Lord  1829,  these  respondents  received  from  ,  esquire, 

marshal  of  the  United  States  for  this  district,  a  request  that  these 
respondents  would  enter  the  cargo  of  the  said  ship  at  the  custom- 
house at  New  York,  and  would  become  responsible  for  the  payment 
of  the  duties  that  might  be  payable  to  the  United  States  on  the 
cargo  of  the  said  ship.     That,  in  pursuance  thereof,  these  respond- 


710  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

ents  entered  the  said  cargo,  and  secured  the  duties  upon  the  same 
by  bond,  conditioned  for  the  payment  of  the  duties  to  be  ascer- 
tained on  the  said  cargo.  That  said  duties  have  been  since  ascer- 
tained, and  amount  to  twenty-one  thousand  six  hundred  and  ninety- 
eight  dollars  and  ninety- one  cents,  which  these  respondents 
have  hereby  become  liable  to  pay;  also,  certain  foreign  duties 
chargeable  on  said  ship  and  cargo,  besides  oustom-house  fees  and 
expenses  paid  by  these  respondents ;  and  that  this  honorable  court, 
after  hearing  proof  and  decreeing  a  reasonable  salvage,  should  it 
seem  proper  so  to  do,  may  further  decree  that  the  rest,  residue  and 
remainder  of  the  said  ship  and  her  cargo,  or  of  the  proceeds  thereof 
should  the  same  be  decreed  to  be  sold,  after  payment  of  said 
amount  of  dues  and  fees,  and  of  the  salvage,  may  be  retained  in 
the  custody  of  this  honorable  court,  for  such  reasonable  time  as 
may  seem  proper ;  wherein  the  rights  and  interests  of  the  above- 
mentioned  underwriters  may  be  ascertained ;  and  that  this  honor- 
able court  may  further  decree  that  the  said  ship  and  cargo,  or  the 
proceeds  thereof,  or  a  part  thereof,  as  proof  may  be  made  of  interest, 
may  be  delivered  up  to  these  respondents,  upon  due  proof  being 
made  in  manner  and  form  as  this  honorable  court  may  direct,  that 
the  said  underwriters  or  any  of  them  have  an  interest  in  and  a 
right  to  receive  the  same  or  any  part  thereof. 

G.  W.   Clay. 

Sworn  to  this  fifth  day  of  October,  1829,  before  me. 

J.  P.  Rich,  Clerk. 

Ayers  &  Sewell,  Proctors. 

Adam  Swinton,  Advocate. 


Form  No.  114. 

Stipulation  for  costs  to  be  given   by  the  claimant   on    putting  in  a 

claim. 

District  Court  of  the  United  States  for  the  Southern  District  of 

New  York. 
Peter  Hart  et  al.  ^ 

V.  >  In  admiralty. 

The  Ship  Waverly.      J 

Whereas  a  libel  was  filed  in  this  court  on  the  sixteenth  day  of 
September,  in  the  year  of  our  Lord  one  thousand  eight  hundred 


FORMS    IN    ADMIRALTY.  711 

and  twenty-nine,  by  Peter  Hart  and  R.  W.  Fielding,  against  the 
ship  Waverly,  her  tackle,  apparel  and  furniture,  and  cargo,  for  the 
reasons  and  causes  in  the  said  libel  mentioned,  and  praying  that  the 
same  may  be  condemned  and  sold  to  answer  the  prayer  of  the  said 
libellants. 

And  Avhereas,  also,  a  claim  has  been  filed  in  said  cause  by  H.  R. 
Clay  and  G.  W.  Clay,  and  the  said  claimants  and  George  Calvin, 
surety,  the  parties  thereto,  hereby  consenting  that  in  case  of  default 
or  contumacy  on  the  part  of  the  claimants  or  their  surety,  execu- 
tion for  the  sum  of  two  hundred  and  fifty  dollars  may  issue  against 
their  goods,  chattels  and  lands  : 

Now,  therefore,  it  is  hereby  stipulated  and  agreed,  for  the  benefit 
of  whom  it  may  concern,  that  the  stipulators  undersigned  shall  be 
and  are  hereby  bound  in  the  sum  of  two  hundred  and  fifty  dollars, 
conditioned  that  the  claimants  above  named  shall  pay  all  costs  and 
expenses  which  shall  be  awarded  against  them  by  the  final  decree  of 
this  court,  or  upon  an  appeal  by  the  appellate  court. 

H.  R.  Clay. 
G.  W.  Clay. 
George  Calvin. 

Taken  and  acknowledged  this  5th  day  of  October,  1829,  before 

me. 

'    J.  P.  Rich,  Clerk. 


Form  No.  115. 

Order  of  the  court  on  the  return  of  mesne  process  in  rem. 

[Title  of  cause  as  ih  Form  No.  114.] 

The  marshal  having  returned  upon  the  monition  in  this  cause  that 
he  had  attached  the  said  ship,  her  tackle,  etc.,  and  cargo,  and  had 
given  due  notice  to  all  persons  claiming  the  same  that  this  court 
would  on  this  day  proceed  to  the  trial  and  condemnation  thereof, 
should  no  claim  be  interposed  for  the  same  : 

On  motion  of  Mr.  Thompson,  proctor  for  the  libellants,  procla- 
mation was  made  for  all  persons  having  anything  to  say  why  the 
said  vessel  and  her  cargo  should  not  be  condemned  and  sold  to  an- 
swer the  prayer  of  the  libellants  to  appear ;  and  on  like  motion, 
ordered  that  the  defaults  of  all  persons  who  have  not  already  filed 
their  claims  be  entered. 


712         federal  pleading,  practice  and  procedure. 

Form  No.  116. 

Proclamation  on  the  return  of  process  in  rem. 
[Title  of  cause  as  in  Form  No.  114.] 

Hear  ye  !  Hear  ye  !  Peter  Hart  and  R.  W.  Fielding,  against 
the  ship  Waverly,  her  tackle,  apparel  and  furniture,  and  cargo. 
All  persons  who  have  anything  to  say  why  the  ship  Waverly,  her 
tackle,  apparel  and  furniture,  and  cargo,  should  not  be  condemned 
and  sold  to  answer  the  prayer  of  the  libellants  in  this  cause,  come 
forward  and  make  your  allegations  in  that  behalf. 


Form  No.  117. 

Replication  to  claim  and  answer. 

[Title  as  in  Form  No.  114.] 
In  Admiralty. 

To  the  honorable  ,  judges,  etc. 

The  replication  of  Peter  Hart  and  R.  W.  Fielding,  libellants,  to 
the  claim  and  answer  of  James  Williamson,  claimant  and  respond- 
ent, alleges  that  they  will  aver,  maintain  and  prove  their  libel  to  be 
true,  certain  and  sufficient,  and  that  the  said  claim  and  answer  of 
the  said  claimant  and  respondent  is  uncertain,  untrue  and  insuf- 
ficient ;  and  they  humbly  pray  as  in  and  by  their  libel  they  have 
already  prayed. 

G.  F.,  Proctor  for  libellants. 


Form  No.  118. 


Claim  by  the  United  States  Attorney  on  behalf  of  the  United  States 
for  forfeiture  and  for  duties  in  a  case  of  salvage  of  a  foreign  ship 
and  cargo. 

[Title  as  in  Form  No.  114.] 

In  Admiralty. 

To   the  honorable  A.  B.,  judge  of  the  district   court  of  the  United 
States  for  the  southern  district  of  New  York. 
The  claim  of  Richard  F.  Stowe,  district  attorney  of  the  United 
States  of  America  for  the  southern  district  of  New  York,  inter- 


FORMS    IN   ADMIRALTY.  713 

vening  for  the  interest  of  the  said  United  States  in  the  said  ship 
called  the  Waverlj,  and  her  cargo,  and  the  answer  of  the  said  attor- 
ney, on  behalf  of  the  said  United  States,  to  the  libel  of  the  said 
Peter  Hart  and  R.  W.  Fielding,  alleges  as  follows : 

First.  That  the  said  Richard  F.  Stowe,  district  attorney  of  the 
United  States  of  America  for  the  southern  district  of  New  York, 
claims  the  said  ship  Waverly,  together  with  the  cargo  of  the  said 
ship  laden  on  board  of  her,  as  stated  and  set  forth  in  the  said  libel, 
as  forfeited  to  the  use  of  the  United  States,  for  the  cause  following, 
to  wit :  that  the  said  ship  Waverly  is  a  ship  or  vessel  owned  wholly 
or  in  part  by  a  subject  or  subjects  of  his  Britannic  Majesty,  and 
said  ship  or  vessel,  after  the  thirtieth  day  of  September,  one  thou- 
sand eight  hundred  and  eighteen,  did  come  and  arrive  from  a  port  or 
place  in  a  colony  or  territory  of  his  Britannic  Majesty,  to  wit,  from 
the  port  of  Armotto  Bay,  in  the  island  of  Jamaica,  in  the  West 
Indies,  which  said  port  is  and  was,  at  the  time  the  said  ship  sailed 
from  thence,  by  the  ordinary  laws  of  navigation  and  trade  closed 
against  vessels  owned  by  citizens  of  the  United  States,  and  that  the 
ports  of  the  United  States  were  and  are  closed  against  the  said  ship 
or  vessel  called  the  Waverly,  which  said  ship  or  vessel  being  so  ex- 
cluded from  the  ports  of  the  United  States,  did  enter  the  same,  to 
wit,  the  port  of  New  York,  in  the  southern  district  of  New  York 
aforesaid,  in  violation  of  the  acts  of  Congress  of  the  United  States 
in  such  case  made  and  provided.  By  force  and  virtue  of  the  acts  in 
such  case  made  and  provided,  the  said  ship  or  vessel,  her  tackle, 
apparel  and  furniture,  together  with  the  cargo  on  board  of  the  said 
ship  or  vessel,  became  and  are  forfeited  to  the  use  of  the  said 
United  States. 

Second.  That  if  this  honorable  court  shall  adjudge  and  decree 
that  the  said  ship  or  vessel  with  her  cargo,  or  either,  is  not  forfeited 
to  the  use  of  the  United  States,  for  the  cause  aforesaid,  the  said 
ship  or  vessel,  together  with  the  cargo  on  board  of  her,  is  liable  to 
the  payment  of  the  duties  imposed  by  the  laws  of  the  United  States 
on  the  arrival  of  the  said  ship  or  vessel  within  the  United  States, 
and  on  the  importation  of  the  cargo  of  merchandise  on  board  of 
her,  to  wit,  rum  and  sugar  of  the  growth,  produce  and  manufacture 
of  some  foreign  country,  and  which  are  subject  to  the  payment  of 
duties  to  the  United  States,  on  being  brought  or  imported  into  the 
United  States  ;  wherefore  the  said  attorney,  on  behalf  of  the  said 


714  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

United  States,  prays  this  honorable  court  to  decree  the  payment  of 
the  said  duties  to  the  United  States  according  to  law,  if  the  said 
ship  and  the  cargo  on  board  of  her  as  aforesaid  shall  be  adjudged 
not  to  be  forfeited  to  the  use  of  the  said  United  States,  for  the 
cause  aforesaid,  and  that  he  may  have  his  costs,  etc.  And  the  said 
attorney  further  insists  upon  and  submits  to  this  honorable  court  the 
rights  and  interest  of  the  said  United  States  of  America  in  the 
premises,  whatever  they  may  be,  to  be  decreed  to  them. 

Richard  F.  Stowe, 
Attorney  United  States,  etc.^ 


Form  No.  119. 

Libel  for  mariners'  -wages. 
To  the  honorable  James  Madison,  judge  of  the  district  court  of  the 
United  States  within  and  for  the  district  of  Massachusetts. 

The  libel  and  complaint  of  A.  B.,  of  ,  late  mariner  of 

the  ship  ,  whereof  C.  D.  now  is  or  late  was  master,  against 

the  said  ship,  her  tackle,  apparel  and  furniture,  and  against  all 
persons  lawfully  intervening  for  their  interest  therein  in  a  cause  of 
subtraction  of  wages,  civil  and  maritime.  And  thereupon  the  said 
A.  B.  alleges  and  articulately  propounds  as  follows : 

First.  That  in  the  month  of  ,  in  the  year  of  our  Lord 

eighteen  hundred  and  ,  the  said  ship  ,  whereof  the 

said  C.  D.  was  master,  being  at  the  port  of  ,  and  destined 

on  a  voyage  from  thence  to  ,  he,  the  said  C.  D.,  by  himself 

or  his  agent,  on  the  high  seas  and  within  the  ebb  and  flow  of  the 
tide,  and  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States  and  of  this  honorable  court,  did  ship  and  hire  the  libel- 
lant  to  serve  as  a  mariner  on  board  the  said  ship  for  and  during 
said  voyage  at  the  rate  of  wages  of  per  month,  as  schedule 

rate ;  and  that  for  the  due  performance  of  the  said  voyage  the 
libellant  signed  and  duly  executed  certain  articles  of  agreement, 
commonly  called  the  shipping  or  mariner's  articles,  which  now  are 
in  the  possession  of  the  said  C.  D.,  master  [or  owner]  of  the  said 
ship,  and  which  he  prays  may  be  produced  for  further  certainty  in 
the  premises  and  for  the  benefit  of  the  libellant.  That  in  pursu- 
ance thereof,  on  or  about  the  day  of  ,  he,  the 
^  The  United  States  do  not  give  a  stipulation  for  costs. 


FORMS    IN    ADMIRALTY.  715 

libellant,  went   on  board  and  entered  into  the  service  of  the  said 
ship  as  such  mariner,  as  aforesaid. 

Second.  That  the  said  ship,  having  taken  on  board  a  cargo  of 
divers  goods  and  merchandise  for  the  voyage,  proceeded  therewith 
and  with  the  libellant  on  board  for  the  port  of  ,  and  there 

safely  arrived  on  or  about  ,  and  delivered  her  cargo  and 

made  freight,  and  that  the  libellant  continued  on  board  and  in  the 
service  of  the  said   ship  until  the  day  of  ,  when 

the  said  voyage  for  which  he  had  so  engaged  was  duly  ended,  and 
he  was  discharged  from  such  service  by  the  said  C.  D.,  the  master. 

Third.  That  during  the  whole  time  he  was  in  the  service  of  the 
said  ship,  to  wit,  from  the  time  when  he  went  on  board  thereof  to  the 
time  of  his  discharge  therefrom,  as  aforesaid,  he  well  and  truly  per- 
formed his  duty  as  a  mariner  on  board  the  said  ship  to  the  best  of  his 
ability,  and  was  obedient  to  all  the  'lawful  commands  of  the  said 
master  and  the  other  officers  of  the  said  ship,  and  well  and  truly 
deserves  and  is  entitled  to  the  wages  in  the  schedule  hereunto  an- 
nexed, amounting  to  the  sum  of 

Fourth.  That  all  and  singular  the  premises  are  true  and  within 
the  admiralty  and  maritime  jurisdiction  of  this  honorable  court,  in 
verification  whereof,  if  denied,  the  libellant  craves  leave  to  refer  to 
the  depositions  and  other  proofs  to  be  by  him  exhibited  in  this  cause. 

Wherefore  the  libellant  prays  that  process  in  due  form  of  law, 
according  to  the  course  of  courts  of  admiralty  and  of  this  honorable 
court  in  causes  of  admiralty  and  maritime  jurisdiction,  may  issue 
against  the  said  ship,  her  tackle,  apparel  and  furniture,  wheresoever 
the  same  shall  be  found,  and  that  all  persons  having  or  pretending 
to  have  any  tight,  title  or  interest  therein  may  be  cited  to  appear 
and  to  answer  upon  oath  all  and  singular  the  matters  so  articulately 
propounded ;  and  that  this  honorable  court  would  be  pleased  to  pro- 
nounce for  the  wages  aforesaid,  and  such  other  relief  to  the  libel- 
lant as  shall  to  law  and  justice  appertain,  and  also  to  condemn  the 
said  ship,  her  tackle,  apparel  and  furniture,  and  the  party  inter- 
vening therefor  in  costs. 

[Signed]  A.  B.,  Libellant. 

E.  F.,  Proctor. 

Massachusetts  District,  ss :  ,  18     . 

Sworn  to  by  the  libellant  before  me. 

G.  H.,  Clerk. 


716  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

SCHEDULE    ANNEXED. 

Wages  due  A.  B.  from  ,  to  ,  being 

months  days,  at  the  rate  of 

per  month,  ........ 

Out  of  which  he  has  received,  including  hospital  dues, 

Sum  due,      ......... 


Form  No.  120. 

Libel  in  a  cause  of  personal  damage. 
Timothy  Billings        "| 

The  Ship  Oneida.      J 
To  the  honorable   James  Madison,  judge  of  the  district  court  of 
the  United    States  within    and    for   the   district   of    Massa- 
chusetts. 

The  libel  and  complaint  of  Timothy  Billings,  of  Boston,  in  the 
district  aforesaid,  late  a  mariner  on  board  the  ship  Oneida,  whereof 
Thomas  Moore,  of  the  said  Boston,  now  is  or  late  was  master, 
against  the  said  Thomas  Moore,  in  a  cause  of  damage,  civil  and 
maritime.  And  thereupon  the  said  Timothy  Billings  alleges  and 
articulately  propounds  as  follows  : 

First.  That  in  April,  1823,  the  ship  Oneida,  whereof  the  said 
Thomas  Moore  was  then  master,  being  in  the  port  of  Boston  and 
bound  on  a  voyage  to  China,  the  said  Thomas  Moore  did,  on  the 
high  seas,  and  within  the  ebb  and  flow  of  the  tide,  and  within  the 
admiralty  and  maritime  jurisdiction  of  this  honorable  court,  by  him- 
self or  his  agent,  ship  and  hire  the  libellant  to  serve  as  a  seaman  on 
board  of  the  said  ship  for  and  during  the  said  voyage ;  and  the  said 
ship,  having  taken  on  board  her  complement  of  officers  and  crew, 
did,  on  or  about  the  day  of  the  said  month  of  April,  proceed 

thereon,  with  the  libellant  on  board,  and,  having  been  to  China,  re- 
turned to  the  port  of  Boston  aforesaid,  with  a  full  ship,  in  the  month 
of  June  last. 

Second.  That  during  the  whole  time  the  libellant  continued  on 
board  the  said  ship,  he  did  well  and  truly  perform  his  duty  on 
board  her,  and  was  obedient  to  all  the  lawful  commands  of  the  said 


I 


FORMS   IN   ADMIRALTY.  717 

Thomas  Moore,  the  master,  and  others  his  superior  officers  on  board 
the  said  ship. 

Third.  That  during  the  time  of  the  said  voyage,  and  while  the 
ship  was  lying  off  Wampoa,  in  China,  to  wit,  on  the  high  seas, 
and  within  the  ebb  and  flow  of  the  tide,  and  within  the  admiralty 
and  maritime  jurisdiction  of  this  honorable  court,  on  the  15th  day 
of  October,  1823,  whilst  the  libellant  was  in  the  fore-hold  handing 
up  billet  wood,  Charles  Hawkins,  the  third  officer  on  board  the  said 
ship  or  vessel,  charged  him  with  not  working  so  hard  as  he  could, 
nor  so  fast  as  another  seaman  of  the  name  of  William  Calvert ;  that 
the  libellant  replied  "that  William  Calvert  worked  too  fast  to  last 
long,"  or  he  made  use  of  words  to  that  or  the  like  effect;  when  the 
said  Charles  Hawkins  immediately  made  complaint  to  Mr.  Jamison, 
the  chief  officer,  that  the  libellant  had  been  very  impertinent  to  him ; 
whereupon,  and  for  no  other  cause  whatever,  Mr.  Jamison  then 
ordered  him  to  be  taken  from  his  duty  and  placed  below  in  irons, 
w^here  he  continued  until  the  21st  of  October.  That,  upon  the  said 
Thomas  Moore  coming  on  board  the  ship  (from  which  he  had  been 
absent  the  whole  of  the  above-mentioned  period),  he  immediately, 
upon  complaint  being  made  to  him  by  the  said  Jamison,  and 
without  hearing  the  libellant  in  his  defence,  ordered  him  to  the 
gangway  and  caused  him  to  be  flogged  with  three  dozen  lashes ; 
and  although  the  libellant  most  humbly  and  repeatedly  urged  the 
said  Thomas  Moore  for  some  water  to  allay  his  thirst  and  fever 
that  he  then  suffered  from  the  punishment  and  previous  imprison- 
ment, he,  the  said  Thomas  Moore,  absolutely  refused  to  let  the 
steward  give  him  any,  nor  would  he  permit  the  mate  to  give  the 
libellant  an  ointment  or  lotion  to  apply  to  his  back,  but  ordered 
him  in  his  fainting  and  exhausted  state  to  return  to  his  duty ;  that 
the  libellant,  in  consequence  of  the  flogging  aforesaid,  suffered  ex- 
treme pain  and  was  greatly  injured  thereby. 

Fourth.  That  the  libellant,  by  reason  of  the  said  cruel  and  vio- 
lent assault  which  he  suffered  by  the  act  of  the  said  Thomas  Moore 
as  aforesaid,  has  sustained  damage  to  the  amount  of  one  thousand 
dollars. 

Fifth.  That  all  and  singular  the  premises  are  true,  and  within  the 
admiralty  jurisdiction  of  this  honorable  court;  in  verification  whereof, 
if  denied,  the  libellant  craves  leave  to  refer  to  depositions  and  other 
proofs  to  be  by  him  exhibited  in  this  cause. 


718  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

Wherefore  he  prays  that  process  in  due  form  of  law,  according  to 
the  course  of  admiralty  and  maritime  jurisdiction,  may  issue  against 
the  said  Thomas  Moore,  and  that  he  may  be  required  to  answer 
upon  oath  all  and  singular  the  matters  so  articulately  propounded, 
and  that  this  honorable  court  would  be  pleased  to  pronounce  for 
the  damages  aforesaid,  and  such  other  relief  to  the  libellant  as  shall 
to  law  and  justice  appertain,  and  also  to  condemn  the  said  Thomas 
Moore  iri  costs. 

Timothy  Billings,  Libellant. 

G.  F.,  Proctor. 


Form  No.  121. 

Libel  in  personam  on  contract. 

To  the  honorable  A.  B.,  judge  of  the  district  court  of  the  United 
States  in  and  for  the  district  of 

The  libel  of  C.  D.,  of  ,  merchant,  against  E.  F,,  of  the 

city  of  ,  merchant,  owner  of  the  ship  Waverly,  in  a  con- 

tract [or  of  tort,  as  the  case  may  be],  civil  and  maritime,  alleges 
as  follows  [here  set  forth  the  grounds  or  causes  of  the  action,  as 
in  the  foregoing  forms  of  libel  in  rem,  including  an  averment  of 
the  jurisdiction  of  the  court,  and  conclude  as  follows] : 

Wherefore  the  libellant  prays  that  process  in  due  form  of  law, 
according  to  the  practice  of  this  honorable  court  in  cases  of  admir- 
alty and  maritime  jurisdiction,  may  issue  against  the  said  E.  F., 
and  that  he  may  be  cited  to  appear  and  answer  upon  oath  all  and 
singular  the  matters  aforesaid,  and  that  this  honorable  court  would 
be  pleased  to  decree  the  payment  of  the  damages  aforesaid  [or  as 
the  case  may  require,  such  as  the  amount  which  shall  be  due  for 
building  the  vessel],  with  interest  and  costs,  and  to  give  him  such 
other  and  further  relief  as  in  law  and  justice  he  may  be  entitled  to 
receive. 

C.  D. 

G.  F.,  Proctor  for  libellant.^ 

[Sworn  to  as  in  the  foregoing  forms.] 

1  If  the  proceedings  are  both  in  rem  be  used,  with  the  changes  which  will 
and  in  personam,  the  above  forms  can     be  suggested  by  the  proceeding. 


forms  in  admiralty.  719 

Form  No.  122. 

Claim   and  Ansv^er. 

United  States  of  America, 

Massachusetts  District,  ss  : 
T.  B.,  libellant,  ^ 

V.  V  term,  18     . 

The  Ship  Oneida.       J 

To  the  honorable  James  Madison,  judge  of  the  district  court  of  the 
United  States  within  and  for  the  district  of  Massachusetts. 

And  now  T.  M.,  of  ,  intervening  for  his  interest  in  the 

ship  Oneida,  appears  before  this  honorable  court,  and  for  answer 
to  the  libel  and  complaint  of  T.  B.,  of  ,  against  the  said 

ship,  and  against  all  persons  lawfully  intervening  for  their  interest 
therein,  alleges  and  articulately  propounds  as  follows : 

First.  That  the  respondent  now  is  the  owner  of  the  said  ship 
Oneida,  and  also  was  the  owner  of  the  same  during  the  time  the 
said  T.  B.  belonged  thereto,  and  that  the  said  T.  B.  was  duly  hired 
to  serve  on  board  the  said  ship  for  the  voyage,  as  in  the  first  arti- 
cle in  said  libel  is  propounded  ;  the  articles  of  agreement  for  which 
voyage,  signed  by  the  said  T.  B.,  the  respondent  doth  herewith 
produce  in  court,  according  to  the  prayer  in  the  said  first  article. 

Second.  That  the  said  ship  Oneida,  having  taken  on  board  a 
cargo  of  divers  goods  and  merchandise  for  the  voyage,  proceeded 
therewith  for  the  port  of  Wampoa,  in  China,  and  there  safely  ar- 
rived and  delivered  her  cargo  and  made  freight,  as  in  the  third 
article  in  the  said  libel  is  propounded. 

Third.  That  whilst  the  said  ship  Oneida  was  at  the  port  of  Wam- 
poa, the  said  T.  B.,  etc.  [here  state  the  bad  conduct  of  the  libellant, 
amounting  to  mutiny  or  desertion,  or  other  ground  of  forfeiture  of 
wages,  and  such  other  matters  showing  that  the  shipping  articles 
were  substantially  broken,  and  also  any  other  matters  calculated  to 
support  and  establish  the  defence]. 

Fourth.  That  all  and  singular  the  premises  are  true,  and  within 
the  admiralty  and  maritime  jurisdiction  of  this  honorable  court; 
in  verification  whereof,  if  denied,  the  respondent  prays  leave  to 
refer  to  the  depositions  and  other  proofs  to  be  by  him  exhibited  in 
this  cause. 

Wherefore  the  respondent  prays  that  this  honorable  court  would 


720     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

be  pleased  to  pronounce  against  the  libel  aforesaid,  and  to  condemn 
the  libellant  in  costs,  and  otherwise  right  and  justice  to  administer 
in  the  premises.  [Signed]         T.  M. 

I.  J.,  Proctor. 

District  of  Massachusetts,  ss:  '         ' 

Sworn  to  by  the  respondent  before  me,  ,  18     . 

G.  H.,  Clerk. 

Form  No.  128. 

Citation,  -with  attachment  of  goods,  etc. 

United  States, 


set 
district  of 

The  President  of  the  United  States  of  America  to  the  marshal  of 

the  district  of  ,    G-reeting : 

Whereas  a  libel  has  been  filed  in  the  district  court  of  the  United 
States  for  the  district  of  ,  on  the  day  of 

,  A.  D.  18     ,  by  ,  against  ,  in  a  certain 

action,  civil  and  maritime,  for  therein   alleged  to  be  due 

the  said  libellant,  amounting  to  ,  and  praying  that  a  cita- 

tion may  issue  against  the  said  defendant,  pursuant  to  the  rules 
and  practice  of  this  court : 

Now  therefore,  we  hereby  command  you  that  you  cite  and  ad- 
monish the  said  defendant,  if  he  shall  be  found  in  your  district, 
that  he  be  and  appear  before  the  said  district  court  on  Friday, 
the  day  of  ,  at  ten  o'clock  in  the  forenoon 

of  said  day,  then  and  there  to  answer  the  said  libel,  and  to  make 
allegations  in  that  behalf;  and  if  the  said  defendant  can- 
not be  found  in  your  district,  that  you  attach  his  goods  and  chat- 
tels in  your  district  to  the  amount  sued  for ;  and  if  sufficient  goods 
and  chattels  cannot  be  found,  that  you  attach  his  credits  and  effects 
to  the  amount  sued  for  in  the  hands  of  the  garnishee,  , 

and  that  you  summon  the  said  garnishee  to  appear  before  the  said 
district  court,  on  the  said  day  of  ,  at  ten  o'clock 

in  the  forenoon  of  the  said  day,  to  do  and  abide  what  may  be  re- 
quired of  in  this  behalf.     And  have  you  then  there  this  writ. 

"Witness  the  honorable  ,  judge  of  said  court  at  , 

this  day  of  ,  A.  D.  18     ,  and  in  the  one  hundred 

and  year  of  the  independence  of  the  said  United  States. 

,  Clerk  district  court. 


set. 


forms  in  admiralty.  721 

Form  No.  124. 

Citation. 

United  States, 
district  of 

The  President  of  the  United  States  of  America  to  the  marshal  of 
the  district  of  ,   Greeting : 

Whereas  a  libel  has  been  filed  in  the  district  court  of  the  United 
States  in  and  for  the  district  of  ,  on  the 

day  of  ,  A.  D.  18     ,  by  ,  in  a  certain  action, 

civil  and  maritime,  for  ,  therein  alleged  to  be  due  the 

said  libellant,  amounting  to  ,  and  praying  that  a  cita- 

tion may  issue  against  the  said  defendant,  pursuant  to  the  rules 
and  practice  of  this  court. 

Now  therefore,  you  are  hereby  commanded  to  cite  and  admonish 
the  said  defendant,  if  he  shall  be  found  in  your  district,  that  he 
be  and  appear  before  the  said  district  court,  on  Friday,  the 
day  of  ,  at  ten  o'clock  in  the  forenoon  of  said  day,  then 

and  there  to  answer  the  said  libel  and  to  make  allegations 

in  that  behalf.     And  have  you  then  there  this  writ. 

Witness  the  honorable  ,  judge  of  said  court  at  , 

this  day  of  ,  A.  D.  18     ,  and  in  the  one  hundred 

and  year  of  the  independence  of  the  said  United  States. 

,  Clerk  district  court. 


Form  No.  125. 

Claim. 

In  the  district  court  of  the  United  States  in  and  for  the 
district  of 

A.  B.  1   Plea  civil  and  maritime  for 

V. 

The  Ship  Lena,  her  tackle,  ap- 
parel and  furniture. 
And  now,  E.  F.,  intervening  for  the  interest  of  C.  D.,  appears 
before  the  honorable  court  and  makes  claim  to  the  said  the  ship 
Lena,  her  tackle,  apparel  and  furniture,  as  the  same  are  attached 
by  the  marshal,  under  process  of  this  court,  at  the  instance  of  A. 
46 


^  In  admiralty. 


722  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

B.,  and  the  said  E.  F.  avers  tliat  he  was  in  possession  of  the  said 
the  ship  Lena  at  the  time  of  the  attachment  thereof,  and  that  the 
person  above  named  was  the  true  and  bona  fide  owner  of  the  said 
ship  Lena,  and  that  no  other  person  is  the  owner  thereof;  and 
that  the  said  E.  F.  is  master  of  the  said  ship  Lena  and  the  true 
and  lawful  bailee  thereof  for  the  said  owner ;  wherefore,  he  prays 
to  be  admitted  to  defend  accordingly. 

E.  F. 
and  subscribed  in  open  court,  this  day 

of  ,  A.  D.  18     . 

,  Clerk  district  court  United  States. 


Sur  information  for  forfeiture. 
)■  In  admiralty. 


Form  No.  126. 

Claim. 

In  the  district  court  of  the  United  States  for  the  district 

of 

The  United  States 

V. 

The  Ship  Lena  and  her  tackle, 
furniture  and  apparel,  lately 
in  possession  of  A.  B. 

And  now,  this  day  of  ,  A.  d.  18     ,  A.  B.  appears 

in  open  court  and  makes  claim  to  the  ship  Lena  and  her  tackle, 
furniture  and  apparel,  as  the  same  are  attached  by  the  marshal, 
under  the  process  of  this  court,  at  the  instance  of  the  United  States, 
libellants  for  forfeiture  ;  and  the  said  A.  B.  avers  that  he  was  in 
possession  of  the  above-mentioned  property  at  the  time  of  the  attach- 
ment thereof,  that  he  is  the  true  and  bona  fide  owner  of  the  same, 
and  that  no  other  person  is  the  owner  thereof,  and  that  all  and 
singular  the  averments  of  cause  of  forfeiture  alleged  in  the  infor- 
mation filed  in  the  above  case  are  untrue ;  wherefore  he  prays  to  be 
admitted  to  defend  accordingly. 

and  subscribed  in  open  court,  this  day 

of  ,  A.  D.  18     . 

,  Clerk  district  court  United  States. 


ss :     In  admiralty. 


forms  in  admiralty.  723 

Form  No.  127. 

Stipulation. 

United  States, 
district  of 

On  this  day  of  a.  d.  18     ,  and  in  the 

year  of  the  independence  of  the  said  United  States,  in  open  district 
court  of  the  United  States,  personally  appeared  ,  and 

by  stipulation  in  due  course  of  law  acknowledged 
to  be  indebted  to  the  United  States  of  America,  for  the  use  of   all 
persons  who  may  be  interested  in  the  premises,    in  the   sum    of 
dollars,  to  be  levied  of  goods  and  chattels,  lands 

and  tenements, 

On  condition  that  if  the  libellant  in  the  above  action  shall  pay  all 
costs  which  by  the  decree,  mandate  or  practice  of  the  court 
may  become  liable  to  pay,  then  this  stipulation  to  be  void  and 
of  no  effect ;  otherwise  to  be  and  remain  in  full  force  and  virtue, 
and  execution  to  issue  thereon  forthwith  for  the  amount  of  such 
costs,  at  the  instance  of  any  person  interested  as  aforesaid. 

Taken,  acknowledged  and   subscribed  this  p        -i . 

day  of  ,  A.  D.  18     ,  in  open  court. 

,  Clerk  D.  C. 


Form  No.  128. 

Stipulation  by  claimant  in  proceedings  for  forfeiture. 
In  the  district  court  of  the  United  States  for  the 
district  of 

The  United  States      "1    Information  for  forfeiture. 

I 

;  1- 

late  in   possession  No.  day  of  ,  18     . 

of  ,  J 

Be  it  remembered  that  on  this  day  of  , 

Anno  Domini  18     ,  we,  , 

acknowledge  ourselves  to  be  jointly  and  severally  indebted  to  the 
United  States  of  America  in  the  sum  of  lawful  money  of 

the  United  States,  to  be  levied  of  the  goods  and  chattels,  lands  and 
tenements  of  us,  and  each  of  us,  to  the  use  of  the  U  nited  States. 


72 i  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

Upon  this  condition,  that  whereas,  under  proceedings  upon  a  libel 
of  information  in  the  district  court  of  the  United  States  for  the 
eastern  district  of  for  alleged  forfeiture,  the  marshal  of 

the  said  district  has  in  custody  certain  goods,  chattels  and  effects 
■which,  as  the  same  are  specified  in  a  certain  claim  thereof  by  the 
said  in  the  said  court,  have  been  duly  appraised  at  the 

value  of  the  sum  aforesaid ;  and  the  said  claimant  having  prayed 
and  been  allowed  restoration  of  the  said  subjects  of  the  said  claim 
upon  our  entering  into  this  recognizance. 

Now,  if  the  said  claimant  shall  abide  the  final  order,  decree  and 
judgment  of  the  said  court,  and  upon  condemnation  of  the  subjects 
of  the  said  claim,  or  any  of  them,  as  forfeited,  shall  forthwith  pay 
into  the  said  court,  or  as  the  said  court  may  direct,  the  sum  afore- 
said, or  the  full  appraised  value  aforesaid  of  all  and  whatsoever 
shall  have  been  so  condemned,  then  this  recognizance  to  be  void ; 
otherwise  it  shall  remain  in  full  force.  And  whenever  the  said  sum, 
or  any  part  thereof,  shall  be  due  and  unpaid,  judgment  or  judg- 
ments against  us,  or  any  of  us,  may,  on  motion  or  otherwise,  be 
entered  on  this  recognizance  at  the  suit  of  the  United  States  (with 
or  without  any  such  previous  writ  or  writs  of  scire  facias  as  herein- 
after mentioned);  and  execution  or  executions  may  forthwith,  or  at 
any  time  or  times,  issue  thereon.  And  it  shall  and  may  be  lawful 
for  the  United  States,  by  their  attorney  or  proper  law  officer,  when- 
ever the  said  sum  or  any  part  thereof  shall  be  due,  and  either  before 
or  after  the  entering  of  any  such  judgment  or  judgments  as  afore- 
said, to  obtain  from  this  court  a  writ  or  writs  of  scire  facias  upon 
this  recognizance  against  us,  or  any  of  us,  tested  as  of  any  day  or 
term  present  or  past,  and  returnable  forthwith,  to  which  writ  or 
writs  respectively  the  judgment  or  judgments,  if  already  entered, 
shall  relate.  And  any  attorney  or  attorneys  of  this  court  may  for 
us,  or  any  of  us,  appear  to  any  such  writ  or  writs,  and  may  confess 
judgment  that  the  plaintiffs  have  execution  as  herein  demanded,  or 
may,  in  the  names  or  name  of  us,  or  any  of  us,  approve,  ratify  and 
confirm  any  such  judgment  or  judgments,  execution  or  executions, 
as  may  previously  have  been  entered  or  issued.  For  all  which  this 
will  be  sufficient  warrant  of  us,  or  any  and  each  of  us,  with  release 
of  all  errors,  etc. 

Taken,  acknowledged,  sealed   and  subscribed  in         [l.  s.] 
open  court. 


forms  in  admiralty.  725 

Form  No.  129! 

Stipulation  by  claimant  in  case  of  libel  by  the  United  States. 

Know  all  men  by  these  presents,  that  we,  ,  are  jointly 

and  severally  held  and  firmly  bound  to  the  United  States,  in  the 
sum  of  lawful  money  of  the  United  States,  to  be  paid  to  the 

said  United  States  :  for  payment  whereof,  well  and  truly  to  be  made, 
we  bind  ourselves,  our  heirs,  executors  and  administrators,  jointly 
and  severally,  firmly  by  these  presents.  Sealed  with  our  seals,  and 
dated  at  ,  this  day  of  ,  one  thousand  eight 

hundred  and  eighty 

The  condition  of  this  obligation  is  such  that  whereas  a  libel  is 
now  pending  in  the  district  court  of  the  United  States  in  and  for 
the  district  of  Pennsylvania,  at  the  suit  of  the  United  States 

against  ,  and  other  property  therein  mentioned  and  de- 

scribed ,  whereof  the  said  ,  the  claimant 

Now  if  the  said  ,  the  claimant  as  aforesaid,  shall  defend 

the  prosecution  of  said  claim,  and  respond  the  costs  in  case 

shall  not  support  the  same,  then  this  obligation  shall  be 
void  ;  otherwise  it  shall  be  and  remain  in  full  force. 

Sealed  and  delivered  in  open  court,  in  the  presence  of 

[L.  S.j 


Form  No.  130. 

Stipulation  for  restitution   of  property  attached. 

United  States,  ]  x      -i        , 

>  ss  :     in  admiralty. 
DISTRICT  OP  .        j  "^ 

Be  it  remembered,  that  at  a  special  district  court  of  the  United 
States,  holden  at  ,  in  and  for  the  district  of  , 

on  the  day  of  ,  a.  d.  18     ,  and  in  the  year 

of  the  independence  of  the  said  United  States,  before  the  honorable 
,  judge    of  said  court,   come  ,  who,  freely  and 

voluntarily  submitting  to  the  jurisdiction  of  the  said  court, 

acknowledge  to  be  indebted  unto  in  the 

sum  of  dollars,  lawful  money  of  the  United  States,  to  be 

levied  of  the  goods  and  chattels,  land  and   tenements  to 

the  use  of  the  said 


726  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

Upon  condition  that  •whereas  a  suit  is  now  pending  in  the  said 
court,  for  ,  wherein  the  said  ,  the  libellant  against 

the  ,  and  the  said  ,  claimant.     Now  if  the 

shall  well  and  truly  abide  by  all  orders,  interlocutory  or  final,  of  the 
said  court,  and  of  any  appellate  court  in  which  the  said  suit  may 
hereafter  be  depending,  and  shall  fulfill  and  perform  the  judgment 
and  decree  which  may  be  rendered  in  the  premises,  and  also  pay  all 
such  costs  and  charges  as  shall  be  ordered  and  adjudged  to  be  paid 
on  part,  then  this  stipulation  shall  be  void :  otherwise  in 

force,  and  execution  may  issue  by  virtue  thereof  at  one  and  the 
same  time  against  any  or  all  the  parties  to  this  stipulation. 

Taken,  acknowledged  and  subscribed  in  open  court  on  the  day 
and  year  above  written. 

[L.  S.] 

The  above  named  ,  being  duly  ,  deposes  and 

says  that  he  is  permanently  a  householder  within  this  district,  and 
that  he  is  worth  the  sum  of  dollars,  after  payment  of  his 

just  debts  and  liabilities. 

And  thereupon  it  is  ordered  that  a  writ  of  restitution  issue  to 
the  marshal,  directing  him  to  restore  the  said  to  the  said 

claimant,  upon  payment  to  him  of  his  costs  and  the  necessary  ex- 
penses by  him  incurred. 


Form  No.  131. 

Attachment  in  personam. 

United  States,  ) 

district  of  .     [ 

The  President  of  the  United  States  of  America  to  the  marshal  of 
the  district  of  ,  Greeting: 

Whereas  a  libel  has  been  filed  in  the  district  court  of  the  United 
States  for  the  district  of  ,  on  the  day  of 

,  by  against  ,  in  a  certain  action  civil 

and  maritime,  for  therein  alleged  to  have  been  committed 

the  said  libellant  .     And  whereas,  by  the  mandate 

of  the  honorable  ,  judge  of  the  said  court,  process  of  at- 

tachment has  been  awarded  against  the  said  : 

Now,  therefore,  we  do  hereby  command  you  that  you  attach  the 


FORMS   IN   ADMIRALTY.  727 

said  ,  if  shall  be  found  in  your  district,  and 

safely  keep,  so  that  you  may  have  before  the  judge  of  the 

said  court,  at  a  session  of  the  same  court  to  be  hoklen  at  , 

on  the  day  of  ,  to  answer  the  said  libel,  and  to 

make  allegations  in  that  behalf.    And  have  you  then  there 

this  writ. 

Witness  the  honorable  ,  judge  of  the  said  court  at  Phila- 

delphia, this  day  of  A.  d.  18     ,  and  in  the 

year  of  the  independence  of  the  said  United  States. 

,  Clerk  district  court  U.  S. 


Form  No.  132. 

Writ  of  appraisement. 

United  States, 


ss:     In  admiralty. 
DISTRICT    OF 

,  judge  of  the  district  court  of  the  United  States  for 
the  district  of 

To  .     You  are  hereby  commanded,  in  the  name  and 

by  the  authority  of  the  United  States,  that  ,  now  in  the 

custody  of  the  marshal  and  libelled  for  forfeiture  at  the 

suit  of  the  United  States  of  America,  you  well  and  faithfully  value 
and  appraise ;  an  indenture  containing  the  true  value  thereof, 
under  your  hands,  and  upon  your  respective  oaths  or  affirmations, 
you  make  and  return  to  me  forthwith,  at  a  session  of  this  court 
now  holding  at  the  district  court  room  in  the  city  of  , 

together  with  this  writ. 

Given  under  my  hand  and  the  seal  of  the  said  court  at  , 

this  day  of  ,  A.  D.  18       ,  and  in  the  one  hundred 

and  year  of  the  independence  of  the  said  United  States. 

,  Clerk  district  court  U.  S. 
,  the  subscriber     ,  having  been  appointed  appraiser 
to  appraise  the  property  named  in  this  writ,  do 

that  will  faithfully  and  fairly  appraise  the  same,  and  make 

a  true  report  of  the  value  thereof,  according  to  the  best  of 
understanding,  without  unnecessary  delay. 

and  subscribed  this  day  of  ,  A.  D.  18 


728         federal  pleading,  practice  and  procedure. 

Form  No.  133. 

Writ  to  restore. 

United  States,  ]  t      ^    •    , 

>  S8 :     In  admiralty. 
DISTRICT   OP  .  j  "^ 

,  judge  of  the  district  court  of  the  United  States  in  and 
for  the  district  of  ,  to  the  marshal  of  the  same  dis- 

trict, Greeting: 

You  are  hereby  commanded  to  deliver  and  restore  unto 
the  or  vessel  called  the  ,  with  her  tackle,  apparel 

and  furniture,  or  so  much  thereof  as  was  lately  and  is  now  in 
your  custody  and  possession,  by  virtue  of  a  writ  of  attachment 
lately  issued  out  of  said  court,  at  the  suit  of  ,  libellant  for 

;   and  how  you  shall  have  executed  this  writ,  make  return 
to  me  at  a  special  session  of  said  court  to  be  holden  at  the  city  of 
on  the  day  of  ,  A.  D.  18     ,  and  have  you 

then  there  this  writ. 

Given  under  the  seal  of  said  court  at  ,  this  day 

[l.  s.]     of  ,  A,  D.       ,  and  in  the  one  hundred  and 

year  of  the  independence  of  the  said  United  States. 

,  Clerk  district  court  U.  S. 


Form  No.  134. 

Return  to  -writ  to  restore  by  the  marshal. 

I  have  restored  to  ,  as  by  the  within  writ  I 

was  commanded.     So  answers 

E.  F.,  U.  S.  marshal,  district  of 


Form  No.  135. 

United  States, 
district  of 

The  President  of  the  United  States  to  the  marshal  of  the 
district  of  ,  Greeting  : 

We  command  you,  that  of   the  goods  and  chattels,  lands  and 
tenements  in  your  district  of  ,  late  of  your  district,  you 

cause  to  be  made  and  levied  as  well  a  certain  debt  of 
which  in  the  district  court  of  the  United  States  in  and 

for  the  eastern  district  of  ,  before  the  judge  of  the  said 


FORMS   IN   ADMIRALTY.  729 

court  by  tlie  consideration  of  the  same  judge  lately  recovered  against 
the  said  as  the  sum  of  ,  which  to  the  said  , 

in  the  said  court,  was  in  like  manner  adjudged  for  costs 

and  charges  which  had  sustained  in  a  certain  plea,  civil 

and  maritime.     And  have  you  those  moneys  before  the  said  judge 
at  a  session  of  the  same  court,  to  be  holden  at  ,  on  the 

day  of  ,  to  render  to  the  said  debt  and 

costs  and  charges  aforesaid.  And  hereof  fail  not,  and 

bring  with  you  this  writ. 

Witness  the  honorable  ,  judge  of  said  court  at  , 

this  day  of  A.  D.  18       ,  and  in  the 

year  of  the  independence  of  the  United  States. 

[L.  S.] 

,  Clerk  district  court  United  States. 


Form  No.  136. 

Order  for  process  on  libel. 

United  States  district  court,  district  of 

A.  B.  ") 

V.  Vin  admiralty. 

The  Ship  Lena.     J 

On  filing  a  libel  in  this  cause,  and  on  motion  of  Mr.  J.  F.,  proc- 
tor for  the  libellant,  it  is  ordered  that  a  warrant  of  arrest  and  moni- 
tion be  issued  herein,  returnable  the  day  of  , 
18      .                                   ___^_ 

Form  No.  137. 

"Warrant  of  arrest  and   monition. 
[Title  as  in  Form  No.  1.] 
In  Admiralty. 
United  States  of  America, 


S8 
DISTRICT  OF 

The  President  of  the  United   States  of  America  to  the  marshal  of 
the  district  of  ,  and  to  his  deputy,  whomso- 

ever, Greeting: 
You  are  hereby  jointly  and  severally  empowered  and  strictly 
enjoined  and  commanded  that  you  arrest  the  vessel  called  the  ship 
Lena,  whereof  J.  H.  now  is  or  late  was  master,  her  boats,  tackle, 


730  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

apparel  and  furniture,  if  she  shall  be  found  within  your  district; 
and  the  same  so  arrested  you  keep  under  safe  and  secure  arrest 
until  you  shall  receive  further  orders  from  the  said  court,  or  the 
same  shall  be  discharged  in  due  course  of  law  ;  and  that  you  cite  at 
the  premises  all  persons  in  general  who  have,  or  pretend  to  have, 
any  right,  title  or  interest  therein,  to  appear  before  the  judge  of  the 
district  court  of  the  United  States  of  America  for  the 
district  of  ,  at  the  city  of  ,  on  the  day 

of  ,  if  it  be  a  court  day,  or  else  on  the  court  day  next  fol- 

lowing, at         o'clock  in  the         noon,  there  to  answer  unto 
in  a  cause  of  A.  B.  civil  and  maritime,  and  further  to  do  and  receive 
in  this  behalf  as  to  justice  shall  appertain ;  and  that  you  duly  cer- 
tify the  judge  of  the  aforesaid  court  what  you  shall  do  in  the  prem- 
ises, together  with  these  presents. 

Witness  the  honorable  ,  judge  of  the  aforesaid 

court,  at  the  city  of  ,  this  day  of  , 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

Action  for  |500. 

G.  F.,  Clerk. 
L.  M.,  Proctor. 

Marshal's  return  to  the  foregoing  writ. — In  obedience  to 
the  within  writ,  I  did  on  the  day  of  ,  18     , 

arrest  the  within   mentioned  the  ship  Lena,  her  tackle,  etc.,  and 
I  duly  cited  all  persons  to  appear  as  within  commanded. 

Subsequently  having  received  a  bond  duly  executed  and  approved, 
conditioned  to  abide  the  decree  of  the  court  in  this  cause,  I  did 
release  the  said  vessel,  and  return  the  said  bond  herewith. 

Dated  the  day  of  ,  18     . 

0.  P.,  U.  S.  marshal. 
By  R.  S.,  Deputy. 


Form  No.  138. 

Bond  by  a  claimant. 

[Title  as  in  Form  No.  1.] 

In  Admiralty. 

Know  all  men  by  these  presents,  that  N.  M.  and  C.  L.  are  held 
and  firmly  bound  unto  A.  B.  in  the  sum  of  dollars,  law- 


forjms  in  admiralty.  731 

ful  money  of  the  United  States  of  America,  to  be  paid  to  the  said 
A.  B.,  executors,  administrators  or  assigns  ;  for  which  payment,  well 
and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors  and 
administrators,  ,  firmly  by  these  presents.     Sealed  with 

our  seals. 

Dated  the  day  of  ,  one  thousand  eight  hundred 

and 

Whereas,  in  a  certain  cause  of  civil  and  maritime, 

moved  and  prosecuted  in  the  district  court  of  the  United  States  of 
America  for  the  district  of  New  York,  on  behalf  of  the 

above-named  obligees  against  the  ship  or  vessel  called  the  ship 
Lena,  her  boats,  tackle,  apparel  and  furniture,  a  warrant  of  arrest  has 
been  issued  out  of  the  said  coiirt  against  the  said  ship  or  vessel,  her 
boats,  tackle,  apparel  and  furniture,  in  virtue  of  which  said  warrant 
the  said  ship  or  vessel,  her  tackle,  apparel  and  furniture  have  been 
arrested  by  ,  one  of  the  deputies  of  the  marshal  of  the 

said  district,  and  are  now  in  his  custody : 

Now,  therefore,  the  condition  of  the  above  obligation  is  such 
that  if  N.  M.,  the  claimant  of  the  said  ship  or  vessel,  her  boats, 
tackle,  apparel  and  furniture,  shall  well  and  truly  abide  and  an- 
swer the  decree  of  the  said  court  in  the  aforesaid  cause,  without 
fraud  or  other  delay,  then  the  above  obligation  to  be  void  ;  other- 
wise it  shall  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  presence  of 

N.  M.  [l.  s.] 

C.  L.    [l.  s.] 

State  of  ,  ^ 

district  of  ,>««•• 

County.  J 

I  hereby  certify,  that  on  this  day  of  , 

18  ,  before  me  came  the  above-named  N.  M.  and  C.  L.,  to  me 
known  to  be  the  same  persons  described  in  and  who  executed  the 
above  bond,  and  acknowledged  that  had  executed  the 

same. 

L.  M.,  Clerk. 
State  of  ,         ^ 

district  of  ,  v  ss  : 

County.      J 
C.  L.,  of  the  of  ,  in  the  said  district, 

being  duly  sworn,  doth  depose  and  say,  and  each  for  himself  says, 


732  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

that  he  is  a  householder  and  resident  of  the  said  district,  and  that  he 
is  worth  dollars,  after  all  his  debts  and  liabilities  are 

paid  and  satisfied. 

Sworn  before  me,  this  day  of  ,  18       . 

L.  M.,  Clerk. 

Form  No.  139. 

Default  and  order  of  reference. 
United  States  district  court,  district  of 

A.  B.  ^ 

V.  V  In  admiralty. 

The  Ship  Lena.   J 

The  mesne  process  returnable  this  day  in  this  cause  having  been 
returned  duly  executed,  and  upon  proclamation  duly  made  for  all 
persons  having  or  pretending  to  have  any  right,  title  or  interest  in 
the  said  the  ship  Lena,  her  tackle,  apparel  and  furniture,  to  appear 
and  make  due  answer  to  the  libel  filed  in  this  cause,  no  person 
having  appeared  to  answer  the  same,  the  court,  on  motion  of  Mr. 
,  advocate  for  the  libellant,  doth  pronounce  all  persons 
whatsoever  to  be  in  contumacy  and  default,  and  doth  order  and 
adjudge  that  the  libel  filed  in  this  cause  be,  and  the  same  hereby 
is,  taken  pro  confesso  against  all  persons  whatsoever  ;  and  it  is  fur- 
ther ordered  that  it  be  referred  to  ,  esquire,  who  is 
hereby  appointed  a  commissioner  for  the  purpose,  to  take  and  hear 
such  testimony  as  the  nature  of  the  case  may  require,  and  report 
the  same  to  the  court ;  and  also  to  ascertain  and  compute  the  amount 
due  the  libellant  for  principal  and  interest  on  account  of  the 

mentioned  in  the  said  libel,  and  report  thereon 
with  all  convenient  speed. 

Form  No.  140. 

Report  on  reference. 

United  States  district  court,  district  of  .     ■ 

A.  B.  ^ 

V.  >  In  admiralty. 

The  Ship  Lena,      j 
To  the  judge  of  the  said  court: 

In  pursuance  of  an  order  of  this  court,  made  in  the  above  cause, 
on  the  day  of  ,  by  which  it  was  referred  to  me  to 


FORMS   IN   ADMIRALTY.  733 

compute  and  ascertain  the  amount  due  the  ,  for  principal 

and  interest  on  account  of  ,  mentioned  and  set  forth  in  the 

libel  in  this  cause,  I,  ,  the  commissioner  and  referee  in 

the  said  order  named,  do  respectfully  certify  and  report  that  cer- 
tain testimony  has  been  taken  on  the  reference  herein,  which  is 
herewith  transmitted  to  the  court.  And  I  do  further  reepect- 
fully  report  that  I  have  considered  the  said  testimony  and  have 
made  the  necessary  computations,  and  that  I  have  accordingly 
ascertained  the  amount  due  the  libellant  in  this  cause  as  aforesaid ; 
and  that  the  amount  due  to  the  libellant  as  aforesaid,  for  principal 
and  interest,  up  to  and  including  the  date  of  this  report,  is 
And  I  do  further  certify  and  report  that  the  schedule  hereunto 
annexed,  marked  A,  and  making  a  part  of  this  my  report,  contains 
a  statement  and  account  of  the  principal  and  interest  moneys  due 
to  the  libellant  as  aforesaid,  the  period  of  computation  of  interest 
and  its  rate,  and  to  which,  for  greater  certainty,  I  refer. 

All  of  which  is  respectfully  submitted. 

Dated 

,  Commissioner  and  referee. 

[Here  insert  schedule  A,  referred  to  in  the  foregoing  report.] 


Form  No.  141. 

Final  decree. 

United  States  district  court,  district  of 

A.  B.  ^ 

V.  >  In  admiralty. 

The  Ship  Lena.       J 

This  cause  coming  on  to  be  heard  upon  the  report  of  , 

esquire,  appointed  a  commissioner  to  make  report  therein,  bearing 
date  the  day  of  ,  certifying  that  there  due 

to  the  at  the  date  of  said  report,  for  on  motion 

of  Mr.  ,  advocate  for  the  libellant,  the  court  doth  order, 

adjudge  and  decree  that  the  said  report  and  all  things  therein 
contained  do  stand  ratified  and  confirmed;  and  it  is  further  or- 
dered, adjudged  and  decreed  that  the  said  the  ship  Lena,  her  tackle, 
apparel,  boats'and  furniture,  be  sold  at  pubhc  auction,  according  to 


734  FEDERAL    PLEADING,    PRACTICE   AND   PROCEDURE. 

the  course  and  practice  of  the  court,  and  that  the  proceeds  of 
such  sale  be  brought  without  delay  into  the  registry  of  the  court ; 
and  that  the  clerk  pay  to  ,  proctor,  out  of  the  said  pro- 

ceeds, the  sum  hereinbefore  mentioned  as  reported  to  be  due  him, 
with  the  legal  interest  thereon  from  the  date  of  the  said  report, 
together  with  costs  and  charges  in  this  suit  to  be  taxed,  or 

so  much  thereof  as  the  said  proceeds  will  pay  of  the  same,  after 
deducting  all  prior  claims  and  charges  thereon. 


Form  No.  142. 

Proctor's  costs. 

United  States  district  court,  district  of 

A.  B.  ^ 

V.  S~  In  admiralty. 

The  Ship  Lena.       J 

Docket  fee  decree  for  $50  (or  over), 
Verification  of  libel         hereof  25  cts.,     . 
Deposition  taken  and  admitted  as  evidence. 
Witnesses  attending  4  days,     . 
Witnesses'  travel  at  5  cts.  per  mile  each,  . 


United  States  op  America,  1 

>  ss  .* 

DISTRICT  OF  .         j 

,  of  the  city  of  ,  being  duly  sworn, 

deposes  and  says:  that  the  services  charged  for  in  the  foregoing  bill 
have  been  actually  and  necessarily  rendered,  as  therein  stated ;  and 
that  the  expenses  therein  mentioned  have  been  actually  and  neces- 
sarily incurred,  as  therein  set  forth. 

Subscribed  and  sworn  before  me  this  day  of  ^ 

18     . 

Q.  R.,  Commissioner  of  the  United  States. 


forms  in  admiralty.  735 

Form  No.  143. 

Clerk's  costs  ;    on  default  and  reference. 

United  States  district  court,  district  of 

A.  B.         ^ 

V.  V  In  admiralty. 

The  Ship  Lena.       j 

Filing  libel,  10  cts.  ;  entering  order  for  process  in  minutes, 
15  cts. ;  engrossing,  10  cts. ;  copy  for  enrollment, 
10  cts., $0  45 

Issuing  process,  $1  ;  seal,  20  cts.,    .         .         .         .         .       1  20 

Certifying  to  marshal's  contents  of  libel,  8  fol.,  at  15  cts.  ; 
engrossing,  10  cts. ;  copy,  10  cts.,     .... 

Filing  process,  10  cts.  ;  return,  10  cts. ;  entering  return, 
15  cts. ;  order  for  proclamation,  15  cts.  ;  engrossing, 
10  cts., 60 

Entering  decree  of  default,  6  fol.,  at  15  cts. ;  engrossing, 
20  cts. ;  copy  for  enrollment,  10  cts.. 

Making  report  and  schedule,  6  fol.,  at  15  cts. ;  engrossing, 

20  cts., 1  10 

Copy  same  for  proctor,  30  cts.;  certifying,  15  cts. ;  enter- 
ing in  register,  15  cts.,     ......  60 

Entering  final  decree,  3  fol.,  at  15  cts. ;  engrossing,  10 
cts.;  copy,  10  cts.,  .         . 

Docket  fee,  $1 ;  making  enrollment,  8  fol.,  at  15  cts. ; 
engrossing,  10  cts.,  ...... 

Drawing  four  orders  for  payment  of  money,  each  30  cts. ; 
engrossing,  20  cts.;  copy,  20  cts.,     .... 

Filing  other  papers  in  cause,  10  cts.. 

Making  this  return,  3  fol.,  at  15  cts.;  copy,  10  cts.,  . 

Attendance  on  reference,  at  $3  per  day,  2  days,         .         .       6  00 

Testimony,  40  fol.,  at  20  cts. ;  4  oaths,  10  cts.  each, .         .       8  40 


Taxed  at  $  ,  ,18 

United  States  of  America, 
district  of 

,  clerk,  being  duly  sworn,  deposes  and  says  that 
the  services  charged  in  the  foregoing  bill  have  been  actually  and 


736  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

necessarily  performed  as  therein  stated,  except  such  as  are  prospect- 
ive, and  those  must  necessarily  be  performed  in  the  cause. 

Subscribed  and  sworn  before  me  this  day  of  , 

18      . 

,  Commissioner  of  United  States. 


Form  No.  144. 

Enrollment  of  decree. 

United  States  district  court,  district  of 

A.  B.  ^ 

V.  >  In  admiralty. 

The  Ship  Lena.      J 

In  the  said  court,  before  the  aforesaid  judge,  on  the 
day  of  ,  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred and  ,  the  in  this  cause,  filed  by  A.  B.  against 

the  said  the  ship  Lena,  her  tackle,  apparel  and  furniture,  and  the 
same  is  hereunto  annexed,  and  thereupon  an  order  was 

entered,  directing  the  issuing  of  process  against  the  said  the  ship 
Lena,  her  tackle,  apparel  and  furniture,  which  order  is  in  the  fol- 
lowing words :     [Here  set  forth  the  order.]     A  process  of  arrest 
and  monition  was  thereupon  issued,  returnable  on  the  said 
day  of  ,  A.  D.  188      .     On  the  day  of  , 

A.  D.  188  ,  the  said  process,  with  the  marshal's  return  thereon 
endorsed,  was  duly  filed,  and  the  same  is  hereunto  annexed. 

On  the         day  of  ,  188     ,  a  decree  was  entered  herein 

in  the  words  and  figures  following:  [Here  insert  the  decree.] 
Thereupon  the  costs  of  this  ,  including  charges 

and  expenses,  were  taxed  at 

Whereupon  the  said  pleadings,  process,  bills  of  cost  and  expenses, 
and  such  other  papers  as  are  required  by  the  rules  and  practice  of 
the  court,  are  now  attached  together  and  hereto  annexed,  and  the 
said  final  decree  is  signed  and  enrolled  the  day  and  year  in  the  cap- 
tion of  this  enrollment  mentioned. 

J.  B.,  District  judge. 


forms  in  admiralty.  737 

Form  No.  145. 

Decree  of  condemnation — another  form. 

In  the  District  Court  of  the  United  States  in  and  for  the 
district  of 


Sur  information  filed. 
^  In  admiralty. 


The  United  States  of  America 

V, 

The  Ship  Lena  and  her  tackle, 
furniture,  etc.,  late  in  posses- 
sion of 

And  now  this  day  of  ,  a.  d.  one  thousand  eight 

hundred  and  ,  it  is  adjudged,  ordered  and  decreed  that 

the  ship  Lena,  and  her  tackle,  furniture  and  apparel  in  the  infor- 
mation and  claim  mentioned,  be  and  the  same  are  condemned  as 
forfeited  for  the  causes  in  the  said  information  set  forth. 


Form  No.  146 

Execution. 

United  States  of  America, 


,  ss :     In  admiralty. 
DISTRICT  OF  '  "^ 

The  President   of  the  United  States  of  America  to  the  marshal  of 
the  United  States  for  the  district  of  ,  and  to 

his  deputy,  whomsoever.  Greeting  : 
Whereas  in  a  certain  cause  of  civil  and  maritime,  moved 

and  prosecuted  before  the  district  court  of  the  United  States  of 
America  for  the  district  of  ,  on  behalf  of  A.  B. 

against  the  ship  Lena,  her  tackle,  apparel  and  furniture,  it  was,  on 
the  day  of  ,  A.  D.  18     ,  by  a  decree  of  the  aforesaid 

court,  pronounced,  decreed  and  declared  that  the  said  A.  B.  was 
entitled  to  recover  in  the  said  cause  the  sum  of  dollars  and 

cents,  together  with  costs  and  expenses  in  the  said 

suit ;  and  whereas  the  said  ship  Lena,  her  tackle,  apparel  and  fur- 
niture were  delivered  out  of  the  custody  of  the  court,  in  virtue  of 
47 


738  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

a  bond  executed  by  N.  M.  as  principal  and  C.  L.  as  surety,  by  which 
bond  the  said  principal  and  sureties  stipulated  to  abide  the  decree 
of  the  court  in  this  cause ;  and  whereas  the  said  costs  and  expenses 
have  been  taxed  at  dollars  and  cents :  Now  there- 

fore, in  order  that  full  and  speedy  justice  may  be  done  in  the  prem- 
ises, you  are  hereby  strictly  charged  and  commanded  jointly  and 
severally  that  of  the  goods  and  chattels  of  the  said  N.  M.  and  C. 
L.,  or  of  either  of  them,  in  your  district,  you  cause  to  be  made  the 
said  sum  so  decreed,  and  also  the  said  costs  and  expenses,  amount- 
ing, in  the  whole,  to  the  sum  of  dollars  and  cents ; 
and  you  are  hereby  further  strictly  charged  and  commanded,  if 
suflBcient  goods  and  chattels  of  the  said  N.  M.  and  C.  L.,  or  of  some 
one  of  them,  cannot  be  found  in  your  district,  that  you  cause  the 
said  sum  to  be  made  out  of  any  real  property,  lands  or  tenements 
of  which  they  are  or  either  of  them  was  possessed  in  your  district, 
on  the  day  of  ,  18  .  And  do  you  further  have  the 
said  moneys,  and  pay  the  same  into  the  registry  of  the  said  court, 
at  the  city  of  ,  on  the  Tuesday  of  next,  and 
do  you  then  and  there  certify  to  the  aforesaid  court  what  you  shall 
have  done  in  the  premises,  together  with  these  presents. 

Witness  the  honorable  ,  judge  of  the  said  court,  at  the 

city  of  ,  this  day  of  ,  18     . 

[l.  s.]         G.  F.,  Proctor. 

L.  M.,  Clerk. 


Form  No.  147. 

Direction  by  the  clerk  endorsed  on  execution. 

United  States  district  court,  district  of 

A.  B.  ^ 

V.  >  In  admiralty. 

The  Ship  Lena.       J 

The  marshal  will  levy  $  with  interest  from  the 

day  of  ,   18     ,  besides   his  fees,  poundage  and  expenses 

hereon. 

L.  M.,  Clerk. 


forms  in  admiralty.  739 

Form  No.  148. 

Marshal's  return. 

In  obedience  to  the  within  writ  I  have  collected  the  sum   of 
$  in  full  of  the  requirements  of  the  within    execution, 

and  have  paid  the  same  into  the  registry  of  the  court,  as  I  am 
required. 

Dated  the  day  of  ,  18     . 

,  "U.  S.  marshal. 
By  ,  Deputy. 


>  ss :     In  admiralty. 


Form  No.  149. 

Warrant  of  arrest  in  personam. 

United  States  of  America, 
district  of 

The  President  of  the  United  States  of  America  to  the  marshal  of 
the  district  of  ,  and  to  his  deputy,  whomso- 

ever, Greeting : 

You  are  hereby  jointly  and  severally  empowered  and  strictly  en- 
joined and  commanded  that  you  arrest  if  he  shall  be  found 
within  your  district ;  and  him  so  arrested  you  keep  under  safe  and 
secure  arrest,  so  that  his  body  may  be  had  and  forthcoming  before 
the  judge  of  the  district  court  of  the  United  States  of  America  for 
the  district  of  ,  at  the  city  of  ,  on 
the  day  of  ,  if  it  be  a  court  day,  else  on  the  court 
day  next  following,  at  o'clock  in  the  noon,  there  to  an- 
swer unto  in  a  cause  of  civil  and  maritime,  and 
further  to  do  and  receive  in  this  behalf  as  to  justice  shall  appertain  ; 
and  that  you  duly  certify  the  aforesaid  judge  what  you  shall  do  in 
the  premises,  together  with  these  presents. 

Witness  the  honorable  ,  judge  of  the  aforesaid  court,  at 

the  city  of  ,  this  day  of  ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and  • 

Action  for  $ 
[l.  s.]         G.  F.,  Proctor. 

L.  M.,  Clerk. 


740        federal  pleading,  practice  and  procedure. 

Form  No.  150. 

Marshal's  citation. 
In  Admiralty. 
United  States  of  America, 


district  of 

Whereas  a  libel  bath  been  filed  in  the  district  court  of  the 
United  States  of  America  for  the  district  of  ,  on 

the  day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  ,  by  ,  Esq     .,  proctor     ,  in  behalf 

of  A.  B.  against  the  ship  Lena,  and  praying  the  usual  process  and 
monition  of  the  court,  that  all  persons  interested  in  the  said  the 
ship  Lena,  her  tackle,  apparel  and  furniture,  may  be  cited  to  an- 
swer the  premises,  and  all  due  proceedings  being  had,  that  the  same 
may  be  decreed  to  be  sold,  and  the  proceeds  thereof  to  be  distrib- 
uted according  to  law  :  Therefore,  in  pursuance  of  the  said  monition 
under  the  seal  of  the  said  court,  to  me  directed  and  delivered,  I  do 
hereby  give  notice  generally,  unto  all  persons  having  or  pretending 
to  have  any  right,  title  or  interest  therein,  and  to  ,  master 

of  the  said  the  ship  Lena,  in  special,  to  appear  before  the  aforesaid 
court,  at  the  city  of  ,  on  the  day  of  ,  if  it 

be  a  court  day,  or  else  on  the  next  court  day  thereafter,  at  o'clock 
in  the  noon,  then  and  there  to  answer  the  said  libel  and  to 

make  their  allegations  in  that  behalf. 

Dated  at  ,  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 

G.  F.,  Proctor. 

,  U.  S.  marshal. 

By  ,  Deputy. 

Form  No.  151. 

Venditioni  exponas. 

In  Admiralty. 

United  States  of  America,    1 

\  ss: 
district  or  .    j 

The  President  of  the  United  States  of  America  to  the  marshal 
of  the  district  of  ,  and  to  his  deputy,  whomso- 

ever, Greeting: 


FORMS   IN   ADMIRALTY.  741 

Whereas  in  a  certain   cause  of  ,   civil  and  maritime, 

moved  and  prosecuted  before  the  district  court  of  the  United 
States  of  America  for  the  district  of  ,  on  behalf 

of  ,  against  the  vessel  called  the  ,  her  boats, 

tackle,  apparel  and  furniture,  and  against  all  persons  in  general 
having,  or  pretending  to  have,  any  right,  title  or  interest  therein, 
it  was,  on  the  day  of  >  by  a  decree  of  the  afore- 

said court,  pronounced,  decreed  and  declared  that  the  demand  of 
the  said  ,  in  the  in  this  cause  set  forth,  was  valid 

and  effectual  against  the  said  to  the  amount  of 

dollars  and  cents ;  and  that  the  same  ought  to  be  paid  to 

the  said  ,  together  with  the  costs  and  charges  by 

incurred  in  the  prosecution  of  said  suit,  as  by  the  said  decree 

remaining  as  of  record  in  the  said  court  doth  more  fully  appear ; 
and  whereas  the  costs  and  expenses  so  decreed  to  be  paid  to  the 
said  amount  to  the  sum  of  dollars  and 

cents,  as  taxed  in  the  aforesaid  court ;  and  whereas  it  was  by  the 
aforesaid  court  accordingly  further  ordered  that  the  said  , 

her  boats,  tackle,  apparel  and  furniture  should  be  sold  to  pay  the 
said  above-mentioned  sums  of  money,  amounting,  in  the  whole,  to 
dollars  and  cents  :  Now  therefore,  in  order  that 

speedy  justice  may  be  done  in  the  premises,  you  are  hereby  strictly 
charged  and  commanded,  jointly  and  severally,  that  you  expose  to 
public  sale  the  aforesaid  ,  her  boats,  tackle,  apparel  and 

furniture,  and  that  you  sell  the  same  to  the  best  bidder ;  and  that 
you  bring  the  proceeds  arising  from  such  sale  into  the  registry  of 
the  aforesaid  court,  on  or  before  the  day  of  ,  and 

that  you  duly  certify  the  judge  of  the  aforesaid  court  what  you 
shall  do  in  the  premises. 

Witness  the  honorable  ,  judge  of  the  aforesaid  court,  at 

the  city  of  ,  this  day  of  ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 
[l.  s.]         G.  F.,  Proctor. 

L.  M.,  Clerk. 


742         federal  pleading,  practice  and  procedure. 

Form  No.  152. 

Monition. 

United  States  of  America,      ]  t     ;i    •    u 

'       vss:     In  admiralty. 
district  of  .      j 

The  President  of  the  United  States  of  America  to  the  marshal  of 
the  United  States  for  the  district  of  ,  and  to 

his  deputy,  whomsoever.  Greeting: 
You  are  hereby  jointly  and  severally  strictly  charged  and  com- 
manded that  you  monish  and  cite  all  persons  in  general  having,  or 
pretending  to  have,  any  right,  title  or  interest  in  the  proceeds  of  the 
sale  of  ,  now  in  the  registry  of  the  district  court  of  the 

United  States  of  America  for  the  district  of  ,  to 

appear  before  the  said  court,  at  the  city  of  ,  in  the  said 

district,  on  the  day  of  ,  to  answer  the  petition  of 

in  a  cause  ;  and  further  to  do  and  receive  in  this 

behalf  as  to  justice  shall  appertain. 

Witness  the  honorable  ,  judge  of  the  aforesaid  court,  at 

the  city  of  ,  this  day  of  ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 
[l.  s.]         G.  F.,  Proctor. 

G.  H.,  Clerk. 


Form  No.  153. 

Marshal's  notice. 


United  States  of  America,      ]  t      ;i    •    u 

'       V  ss :     In  admiralty. 
district  of  .         J  . 

Whereas  a  petition  hath  been  filed  in  the  district  court  of  the 
United  States  of  America  for  the  district  of  ,  on 

the  day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  ,  by  ,  esquire,  proctor,  in  be- 

half of  ,  of  ,  in  the  state  of  ,  against  the 

proceeds  of  the  sale  of  the  ,  now*  in  the  registry  of  the 

said  court,  stating   and    alleging  that  ,  and   praying   the 

usual   process    and   monition  of  the    said   court,  that    all   persons 
having  or  pretending  to  have  any  right,  title  or  interest  therein  may 


FORMS   IN   ADMIRALTY.  V43 

be  cited  to  answer  the  premises,  and  all  due  proceedings  being  had, 
that  the  demand  of  the  petitioner  may  be  decreed  to  be  paid  out  of 
the  said  proceeds. 

Therefore,  in  pursuance  of  the  said  monition,  under  the  seal  of 
the  said  court,  to  me  directed  and  delivered,  I  do  hereby  give  notice 
generally  unto  all  persons  having  or  pretending  to  have  any  right, 
title  or  interest  in  the  said  proceeds,  to  appear  before  the  said  court 
at  the  city  of  ,  on  the  day  of  ,  if  it  shall 

be  a  court  day,  otherwise  on  the  next  court  day  thereafter,  at 
o'clock  in  the         noon,  to  answer  the  petition  of  the  said  , 

and  further  to  do  and  receive  in  this  behalf  as  to  justice  shall  apper- 
tain. 

Dated  at  ,  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 

G.  F.,  Proctor. 

,  U.  S.  marshal. 
By  ,  Deputy. 


Form  No.  154. 

Final  decree  pro  confesso. 

[Title  as  in  Form  No.  110.] 
In  Admiralty. 

At  a  special  session  of  the  district  court  of  the  United  States  of 
America  for  the  district  of  ,  held  at  the  city  of 

,  in  the  said  district,  on  the  day  of  ,  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and 

Present — the  honorable  ,  district  judge. 

The  mesne  process  returnable  this  day  in  this  cause  having  been 
returned  duly  executed,  and  upon  proclamation  duly  made  for  all 
persons  having,  or  pretending  to  have,  any  right,  title  or  interest  in 
the  said  ,  her  tackle,  apparel  and  furniture,  to  appear  and 

make  due  answer  to  the  ,  filed  in  this  cause  no  person  having 

appeared  to  answer  the  same,  the  court,  on  motion  of  , 

advocate  for  the  ,  doth  pronounce  all  persons  whatsoever  to 

be  in  contumacy  and  default,  and  doth  order  and  adjudge  that  the 
filed  in  this  cause  be  and  the  same  hereby  is  taken  pro 
confesso  against  all  persons  whatsoever;  and  it  is  further  ordered 
that  the  libellant  ought  to  have  and  receive  the  sum  of 


744  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

dollars  and  cents  by  demanded  in  the  libel  in  this 

cause  on  account  of  the 


Form  No.  155. 

Clerk's  bill  of  fees. 
United  States  circuit  court,  district  of 

V.  >  In  admiralty. 

Filing  libel,  10  cts. ;  entering  order  for  process  in  minutes, 

15  cts. ;  engrossing,  10  cts. ;  copy  for  enrollment,  10  cts.,     $0  45 

Issuing  process,  $1;  seal,  20  cts.,     .         .         .         .         .       1  20 

Certifying  to  marshal's  contents  of  libel,  fol.  4,  15  cts.; 

engrossing,  10  ct'. ;  copy,  10  cts.,     .         .         .         .       1  40 

Filing  process,  10  cts. ;  return,  10  cts. ;  entering  return, 
15  cts.;  order  for  proclamation,  15  cts.;  engrossing, 
10  cts., 60 

Entering  final  decree,  fol.  4,  15  cts. ;  engrossing,   10   cts. ; 

copy,  10  cts.;  copy  for  proctor,  10  cts.,     .         .         .       1  80 

Docket  fee,  $1  ;  making  enrollment,  fol.  8,  15  cts. ;  en- 
grossing, 10  cts.,      .         .         .         .         .         .         .       3  00 

Drawing  four  orders  for  payment  of  money,  each  30  cts.; 

engrossing,  20  cts. ;  copy,  20  cts.,     .         .         .         .       2  80 

Filing         other  papers  in  cause,  10  cts.,  .... 

Making  this  return,  folio  3,  15  cts. ;  copy,  10  cts. ;    .         .  75 


$12  00 


Taxed  at  $     . 

L.  M.,  Clerk. 
United  States  of  America, 

district  of 

,  clerk,  being  duly  SAvorn,  deposes  and  says  that 
the  services  charged  in  the  foregoing  bill  have  been  actually  and 
necessarily  performed  as  therein  stated,  except  such  as  are  prospect- 
ive, and  those  must  necessarily  be  performed  in  the  cause. 

Subscribed  and  sworn  before  me,  this  day  of  , 

18      . 

,  Commissioner  of  United  States. 


forms  in  admiralty.  745 

Form  No.  156. 

Information  ;   seizure. 

United  States  district  court, 
district  of 

At  a  session  of  the  district  court  of  the  United  States 

of  America  held  in  and  for  the  district  of  ,  at 

the  city  of  ,  on  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and  ,  before  the  hon- 

orable ,  judge  of  the  said  court,  comes  E,  F.,  attorney  of 

the  said  United  States  of  America  in  and  for  the  said  district,  who 
prosecutes  for  the  United  States  of  America  in  this  behalf,  and  be- 
ing present  here,  in  this  honorable  court,  in  his  own  proper  person, 
in  the  name  and  on  the  behalf  of  the  said  United  States  of  Amer- 
ica, gives  the  said  court  now  here  to  understand  and  be  informed  as 
follows,  that  is  to  say. 

That  G.  H.,  collector  of  for  the  district 

of  ,  in  the  said  district  of  ,  and 

within  the  jurisdiction  of  this  court,  heretofore,  that  is  to  say,  on 
the  day  of  ,  in  the  year  one  thousand  eight  hundred 

and  ,  to  wit,  at  ,  in  the  said  district  of  , 

and  within  the  jurisdiction  of  this  court,  seized  as 

forfeited  to  the  use  of  the  United  States  of  America  [here  de- 
scribe the  goods],  being  the  goods,  chattels  and  property  of  some 
person  or  persons  to  the  said  United  States  of  America,  and  to  their 
said  attorney,  unknown,  and  being  subject  to  duty  to  the  said 
United  States  of  America,  on  being  imported  into  the  said  United 
States  of  America. 

For  that  heretofore,  that  is  to  say,  on  the  day  and  year  last  afore- 
said, the  goods,  chattels  and  property  aforesaid  being  subject  to 
duty  as  aforesaid  on  being  imported  into  the  said  United  States  of 
America,  were  imported  and  brought  into  the  said  United  States  of 
America,  that  is  to  say,  into  the  said  district  of  ,  in  the 

said  district  of  ,  and  within  the  jurisdiction  of 

this  court,  from  some  foreign  territory  adjacent  to  the  said  United 
States  of  America,  to  the  said  United  States  of  America  and  their 
said  attorney  unknown,  in  and  on  board  of  some  unregistered  ves- 
sel, boat,  raft,  canoe,  carriage  or  sleigh,  or  by  some  person  or  per- 


746  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

sons  coming  from  the  said  adjacent  foreign  tewitory  to  the  said 
United  States  of  America,  and  to  their  said  attorney  unknown. 

Yet  the  master  of  the  said  unregistered  vessel,  or  the  person 
having  charge  of  the  said  boat  or  raft,  or  the  conductor  or  driver 
of  the  said  carriage  or  sleigh,  in  which  the  said  goods  and  chattels 
were  imported  and  brought  as  aforesaid  from  the  said  adjacent 
foreign  territory,  or  the  person  or  persons  coming  from  the  said  ad- 
jacent foreign  territory  with  the  said  goods,  chattels  and  property, 
did  not  immediately  on  his  arrival  within  the  said  United  States  of 
America  deliver  a  manifest  of  the  cargo  or  loading  of  the  said  un- 
registered vessel,  boat,  canoe,  raft,  carriage  or  sleigh,  in  which  the 
said  goods,  chattels  and  property  were  imported  and  brought  as 
aforesaid  into  the  said  United  States  of  America,  or  of  the  said 
goods,  chattels  and  property,  or  of  any  part  thereof,  at  the  office  of 
the  collector  or  deputy  collector  nearest  to  the  boundary  line  be- 
tween the  said  United  States  of  America  and  the  adjacent  foreign 
territory,  or  nearest  to  the  road  or  waters  by  which  the  said  goods, 
chattels  and  property  were  imported  and  brought  into  the  said 
United  States  as  aforesaid,  but  the  master  of  the  said  unregistered 
vessel,  and  the  person  having  charge  of  said  boat,  canoe  or  raft,  and 
the  conductor  or  driver  of  said  carriage  or  sleigh,  with  the  said  goods, 
chattels  and  property,  or  the  person  or  persons  coming  from  the  said 
adjacent  foreign  territory  into  the  said  United  States  of  America, 
with  the  said  goods,  chattels  and  property,  did  neglect  and  refuse 
to  deliver  such  manifest,  and  did  also  pass  by  and  avoid  the  said 
office,  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  whereby,  and  by  force  of  the  statute  in  such  case  made 
and  provided,  the  said  goods,  chattels  and  property  became  and 
were  forfeited  to  the  use  of  the  said  United  States  of  America. 

And  the  said  attorney  of  the  United  States,  on  behalf  of  the  said 
United  States,  saith  that  by  reason  of  all  and  singular  the  premises 
aforesaid,  and  by  force  of  the  statute  in  such  case  made  and  pro- 
vided, the  aforementioned  and  described  goods,  wares  and  merchan- 
dise became  and  are  forfeited  to  the  use  of  the  said  United  States : 
And  that  all  and  singular  the  premises  aforesaid  are  and  were  true, 
public  and  notorious,  of  which  due  proof  being  made,  the  said  attor- 
ney prays  the  usual  process  and  monition  of  this  honorable  court 
in  this  behalf  to  be  made;  and  that  all  person  or  persons  interested 
iu'the  before-mentioned  and  described  goods,  wares  and  merchan- 


FORMS   IN   ADMIRALTY.  747 

dise  may  be  cited  in  general  and  special -to  answer  the  premises, 
and  all  due  proceedings  being  had  thereon,  that  the  said  goods, 
"wares  and  merchandise  may,  for  the  causes  aforesaid  and  others  ap- 
pearing, be  condemned  by  the  definite  sentence  and  decree  of  this 
honorable  court,  as  forfeited  to  the  use  of  the  said  United  States? 
according  to  the  form  of  the  statutes  of  the  United  States  in  such 
cases  made  and  provided. 

G.  F.,  United  States  attorney  for  the 

district  of  • 

Form  No.  157. 

Another  form  of  information ;  seizure. 

United  States  District  Court, 
DISTRICT  of 

That  G.  H.,  collector  of  the  customs  for  the  district  of  , 

having  full  power  and  authority  to  enter  any  store,  warehouse  or  other 
building  upon  or  near  the  boundary  line  between  the  United  States 
and  any  foreign  country  in  which  he  should  have  reason  to  believe 
any  goods,  wares  or  merchandise,  subject  to  duty,  were  concealed, 
and  therein  to  search  for,  seize  and  secure  such  goods,  wares  and 
merchandise,  heretofore,  to  wit,  on  the  day  of  , 

in  the  year  one  thousand  eight  hundred  and  ,  having  reason 

to  believe  and  suspect  that  such  goods,  wares  and  merchandise 
which  were  subject  to  duty  were  concealed  in  a  certain  store  on  or 
near  the  boundary  line  between  the  United  States  and  the  province 
of  Canada,  the  said  collector  thereupon  did  enter  the  said  store,  and 
did  seize  goods,  wares  and  merchandise  subject  to  duty,  to  wit 
[here  describe  the  property],  upon  which  no  duties  had  been  paid 
and  no  duties  had  been  secured  to  be  paid  on  the  same. 

And  also  for  that  the  aforesaid  goods,  wares  and  merchandise, 
subject  to  duty  on  being  imported  into  the  United  States,  were 
heretofore,  to  wit,  on  the  day  of  ,  in  the  year  one 

thousand  eight  hundred  and  ,  found  by  ,  collector  of 

customs  of  the  district  of  ,  in  the  possession  of  some  person  or 

persons  to  the  said  attorney  unknown,  at  ,  in  the  said  district ; 
and  the  said  [here  describe  the  goods]  had  not  impressed  thereon 
the  inspection  marks  as  required  by  the  provisions  of  the  statute  in 
such  case  made  and  provided.      Your  informant  therefore  prays 


748     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

that  said  property  may  be  attached  and  condemned  as  forfeited  to 
the  United  States. 

G.  F.,  United  States  attorney  for  the  district  of 


Form  No.  158. 

Attachment,  on  the  foregoing   information. 

United  States  of  America, 


go    • 

DISTRICT  OF 

The  President  of  the  United  States  of  America  to  the  marshal  of 
the  district  of  ,  Crreeting : 

Whereas  an  information  has  been  filed  in  the  district  court  of  the 
United  States  for  the  district  of  ,  on  the 

day  of  ,  18     ,  on  behalf  of  the  said  United  States,  by  G. 

F.,  Esq.,  attorney  of  the  said  United  States  for  the  district  afore- 
said, against  ,  which  by  ,  collector  of  for 
the  district  of  ,  on  the  day  of  ,  18  , 
at  the  said  district  of  ?  iii  the  district  of 
,  were  seized  as  forfeited  to  the  use  of  the  said  United 
States,  for  the  reasons  and  causes  in  the  said  information  men- 
tioned, and  praying  the  usual  process  and  monition  of  the  said 
court  in  that  behalf  to  be  made,  and  that  all  persons  interested  in 
the  said  may  be  cited  in  general  and  special  to  answer  the 
premises,  and  all  due  proceedings  being  had,  that  the  said  property 
above  mentioned  may,  for  the  causes  in  the  said  mentioned, 
be  condemned  as  forfeited*  to  the  use  of  the  said  United  States,  ac- 
cording to  the  form  of  the  statute  in  such  case  made  and  provided: 
You  are  therefore  hereby  commanded  to  attach  the  said  , 
and  to  detain  the  same  in  your  custody  until  the  further  order  of 
the  court  respecting  the  same,  and  to  give  due  notice  unto  all  per- 
sons claiming  the  said  property,  or  knowing  or  having  anything  to 
say  why  the  same  shall  not  be  condemned  as  forfeited,  pursuant  to 
the  prayer  of  the  said  ,  that  they  be  and  appear  before 
the  said  district  court,  to  be  held  in  and  for  the  district  of 
,  at  the  city  of  ,  in  the  county  of  ,  in  the 
said  district  of  ,  on  the  day  of  next, 
at                 o'clock  in  the              noon  of  the  same  day,  if  the  same 


FORMS    IN   ADMIRALTY.  749 

shall  be  a  day  of  jurisdiction,  otherwise  on  the  next  day  of  juris- 
diction thereafter,  then  and  there  to  interpose  a  claim  for  the  same 
and  to  make  their  allegations  on  that  behalf.  And  what  you  shall 
have  done  in  the  premises,  do  you  then  and  there  make  return 
thereof  with  this  writ. 

Witness  the  honorable  ,  district  judge  of  the  United 

States    for  the   district  of  ,  at  the  city  of  ,  the 

day  of  ,  18     . 

[l.  s.]         E.  F.,  U.  S.  attorney. 

G.  H.,  Clerk. 

Form  No.  159. 

Marshal's  return  to  within  [or  foregoing]  w^rit. 

In  obedience  to  the  within  writ,  I  did,  on  the  day  of 

,  18     ,  at  ,  seize  and  attach  the  within-mentioned 

property,  and  I  have  duly  cited  all  persons  to  appear  and  assert 
their  claims,  as  I  am  within  commanded. 
Dated 

Q.  J.,  Marshal. 
Service,  $  .  By  L.  M.,  his  deputy. 

Travel,  miles,  at  six  cents  per  mile,  $ 

Total  amount,  | 


Form  No.  160. 

Marshal's  notice. 

United  States  of  America, 


.  ss 
district  of 

Whereas  a  hath  been  filed  in  the  district  court  of  the 

United  States  of  America  for  the  district  of  ,  on 

the  day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  ,  by  ,  esquire.  United  States 

attorney,   in  behalf    of    the   United   States  of    America,   against 

,  stating 'that  the  same  were,  on  the  day  of 

,  by  ,  esquire,  collector  of  for  the 

district  of  ,  seized  as  forfeited  to  the  use  of  the 

said  United  States ;  and  further  stating  and  alleging  that  the  said 

forfeiture  was  incurred  by  reason  and  for  other  reasons. 


750  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

as  will  more  fully  appear  by  reference  to  the  said  on  file 

"with  the  clerk  of  said  court  at  ,  and  praying  the  usual 

process  and  monition  of  the  said  court,  that  all  persons  interested 
in  the  said  ,  etc.,  etc.,  may  be  cited  to  answer  the  premises, 

and  all  due  proceedings  being  had,  that  the  same  may  be  condemned 
and  sold,  and  the  proceeds  thereof  be  distributed  according  to  law; 
therefore,  in  pursuance  of  the  said  monition,  under  the  seal  of  the 
said  court  to  me  directed  and  delivered,  I  do  hereby  give  notice 
unto  all  persons  generally  having,  or  pretending  to  have,  any  right, 
title  or  interest  therein,  to  appear  before  the  aforesaid  court  in  the 
city  of  ,  on  the  day  of  next,  if  it  be  a 

court  day,  or  else  on  the  next  court  day  thereafter,  at 
o'clock  in  the  noon,  then  and  there  to  answer  the  said 

and  to  make  their  allegations  in  that  behalf. 

Dated  at  ,  the  day  of  ,  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and 

I.  J.,  United  States  marshal. 

L.  M.,  Deputy. 


Form  No.  161. 

Final  decree,  pro  confesso. 

At  a  stated  session  of  the  district  court  of  the  United  States 
for  the  district  of  New  York,  held  at  the  city  of 

on  the  day  of  ,  18     . 

Present — the  honorable  ,  district  judge. 

The  United  States       "| 

J       .      .    . 

The  mesne  process  heretofore  issued  in  this  cause  and  returnable 
at  this  term  of  the  court  having  been  duly  returned,  and  procla- 
mation having  been  made  for  all  persons  having  or  claiming  any 
right,  title  or  interest  in  the  property  mentioned  and  described  in 
the  information  herein  to  come  forward  and  assert  their  claims  on 
the  pain  of  being  pronounced  in  contumacy  and  default,  and  a  de- 
cree pro  confesso  being  taken  against  them,  and  no  person  having 
appeared  or  asserted  any  claim  thereto,  the  court  now  here  doth 
pronounce  all  persons  having  or  claiming  any  right,  title  or  inter- 
est in  the  said  property  to  be  in  contumacy  and  default,  and  that 


FORMS   IN   ADMIRALTY. 


751 


the  information  in  this  cause  be  taken  as  confessed.  And  this 
court  having  proceeded  to  hear  this  cause  ex  parte,  and  having  con- 
sidered the  same,  it  is  hereby  ordered  and  adjudged  that  the  prop- 
erty mentioned  and  described  in  this  suit  be  and  is  hereby  con- 
demned as  forfeited  to  the  use  of  the  United  States.  And  it  is 
further  ordered  that  the  said  property,  in  said  information  de- 
scribed, be  sold  by  the  marshal  at  public  sale,  according  to  the 
statute,  and  the  rules  and  practices  of  the  court,  at  , 

in  the  said  district  of  ,  and  that  the  marshal 

pay  the  proceeds  of  said  sale  into  the  registry  of  the  court  with  all 
proper  speed. 

Form  No.  162. 

Clerk's  costs. 
United  States  district  court,  district  of  • 


V. 


Filing         ,  10  cts. ;  entering  order  process,  15  cts. ;  copy 

10  cts. ;  engrossing,  10  cts. ;  filing,  10  cts.. 
Issuing  process  and  seal,  ^1  20  ;  notices  for  marshal,  $1  20 
Entering  decree  of  default,  etc.,  3  folios,  15  cts. ;  copy 

30  cts.;  engrossing,  30  cts.;  filing,  10  cts.. 
Copy  for  dist.  att'y,  fol.  ,  10  cts. ;  cert.,  15  cts. 

Docket  fee,  $1 ;  judgment  record,  fol.  ,  15  cts., 

Issuing  venditioni  exponas  and  seal, 
Percentage  on  sale  paid  in,  $  ,  . 
Entering  order  distribution,  2  fol.,  15  cts. ;  copy,  20  cts. 

engrossing,  20  cts. ;  filing,  10  cts.,    . 
Abstract  proceedings,  3  fol.,  15  cts.;  copy  for  solr.  try. 

30  cts,;  do.  for  coir.,  30  cts.,    . 
Drawing  4  order  checks,  2  fol.  each,  at  15  cts., 
Copy  each,  80  cts.;  entering  each  in  ledger,  60  cts.,  . 
Filing      other  papers,  10  cts. ;  taking      affidavits,  25  cts. 


^0  55 
2  40 

1  15 


1  20 


80 

1  05 
1  20 
1  40 


Taxed  and  allowed  at  $         this 


day  of  ,  18     . 

H.  L.,  District  judge. 


752         federal  pleading,  practice  and  procedure. 
United  States  of  America, 


ss 
district  of 

G.  H.,  clerk  of  said  court,  being  duly  sworn,  says  that  the 
services  charged  in  the  foregoing  bill  have  been  or  will  be  actually 
and  necessarily  rendered  in  the  progress  of  this  cause,  as  therein 
stated. 

Sworn  and  subscribed  before  me,  this  day  of  ,  18     . 

Q.  R.,  Commissioner  United  States  circuit  court. 


Form  No.  163. 

Warrant  to  sell  in  such  a  case. 

United  States  of  America, 


ss : 
district  of 

The  President  of  the  United  States  of  America  to  the  marshal  of 
the    United    States    for    the  district   of  , 

Greeting : 
Whereas  a  hath  been  filed  in  the  district  court  of  the 

United  States  for  the  district  of  ,  on  the 

day  of  )  18     ,  on  behalf  of  the  United  States,  by  , 

Esq.,  attorney  of  the  said  United  States  for  the  district  aforesaid, 
against  ,  stating   and    alleging  that  for  the  reasons  and 

causes  specified  in  the  said  ,  the  said  property  above  de- 

scribed had  been  seized  and  become  forfeited  to  the  use  of  the  said 
United  States,  and  praying  that  the  same  may  be  condemned  as 
forfeited  to  the  use  of  the  said  United  States ;  and  whereas  the 
said  property  above  described  has  been  attached  by  the  process 
issued  out  of  the  said  district  court,  in  pursuance  of  said  , 

and  is  now"  in  custody  by  virtue  thereof,  and  such  proceedings  have 
been  thereupon  had  that  by  the  definite  sentence  and  decree  of  the 
said  district  court,  in  this  cause  made  and  pronounced  on  the 
day  of  ,  18     ,  the  said  property  above  described  was  con- 

demned as  forfeited  to  the  use  of  the  said  United  States,  and  was 
ordered  to  be  sold  by  you,  the  said  marshal,  at  ,  after  giving 

days  notice  of  such  sale  according  to  law ;  and  that  you  have  the 


FORMS   IN   ADMIRALTY.  753 

moneys  arising  from  such  sale,  together  with  this  writ,  at  the  next 
stated  session  of  the  said  district  court  of  the  United  States,  to  be 
held  for  the  district  of  ,  at  the  city  of  ,  on 

the  day  of  next ;  therefore,  you,  the  said  marshal, 

are  hereby  commanded  to  cause  the  said  above-described  property, 
so  condemned  and  ordered  to  be  sold,  to  be  sold  in  manner  and 
form  upon  the  notice  and  at  the  time  and  place  aforesaid,  and 
that  you  have  and  pay  the  money  arising  from  such  sale,  as  in  said 
decree  directed,  and  have  you  also  then  and  there  this  writ. 

Witness  the  honorable  ,  district  judge  of  the 

district  of  ,  at  the  city  of  ,  the  day  of  , 

18     . 

G.  H.,  Clerk. 


Form  No.  164. 

Information — another  form ;    seizure. 

U.  S.  District  Court, 


ss 

DISTRICT    OF 

At  a  session  of  the  district  court  of  the  United  States 

of  America  for  the  district  of  ,  begun  and  field 

at  the  United  States  buildings  in  the  city  of  ,  in  the  state 

of  ,  in  the  said  district,  before  the  judge  of  the 

same  court,  on  the  day  of  ,  in  the  year  one  thousand 

eight  hundred  and  ,  comes  ,  attorney  of  the  United 

States  for  the  said  district  of  ,  who  prosecutes  for 

the  said  United  States  in  this  behalf,  and  being  present  here  in 
court,  in  his  own  proper  person,  in  the  name  and  on  behalf  of  the 
said  United  States,  alleges,  informs  and  declares  as  follows,  to  wit: 

Fi7'st.    That  ,   collector  of   internal  revenue  for  the 

district  of  the  state  of  ,  heretofore,  to  wit,  on 

the  day  of  ,  in  the  year  one  thousand  eight  hun- 

dred and  ,  on  land  at  the  ,  within  the 

district  of  ,  and  within  the  jurisdiction  of  this  court,  seized, 

as  forfeited  to  the  use  of  the  United  States,  the  following  described 
goods,  wares  and  merchandise,  articles  and  objects,  that  is  to  say : 
48 


75-4     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

That  the  said  goods,  wares  and  merchandise,  articles  and  objects, 
then  and  there  being  so  subject  to  the  payment  of  duties  and  taxes 
as  aforesaid,  -were  found  by  the  said  ,  such  collector  as 

aforesaid,  in  the  possession  and  custody  and  within  the  control  of 
,  for  the  purpose  of  being  removed  by  ,  in 

fraud  of  the  internal  revenue  laws  of  the  United  States,  and  with 
the  design  to  avoid  the  payment  of  such  duties  and  taxes  as  pro- 
vided by  §  3257  and  §  3261  of  the  Revised  Statutes. 

That  the  said  goods,  Avares  and  merchandise,  articles  and  objects, 
except  the  said  ,  were  raw  materials,  tools,  implements, 

instruments  and  personal  property  in  the  place  and  building  and 
within  the  yard  and  enclosure  where  said  articles  upon  which  duties 
are  and  were  imposed  as  aforesaid  were  found  and  seized  by  the 
said  ,  as  such  collector  as  aforesaid,  at  the  time  and  place 

aforesaid,  and  were  intended  to  be  used  by  in  the  fraudu- 

lent manufacture  by  the  said  of  such  raw  materials  as  afore- 

said into  highwines,  whisky,  distilled  spirits  and  spirituous  liquors, 
and  in  fraud  of  the  internal  revenue  laws  of  the  United  States,  and 
Avith  the  design  to  avoid  the  payment  of  the  duties  imposed  by 
the  before-mentioned  statutes,  and  against  the  section 

thereof. 

That  the  said  goods,  wares  and  merchandise,  articles  and  objects, 
then  and  there  being  so  subject  to  the  payment  of  duties  and  taxes 
as  aforesaid,  were  found  by  the  said  ,  such  collector  as 

aforesaid,  in  the  possession  and  custody  and  within  the  control  of 
,  for  the  purpose  of  being  sold  by  ,  in  fraud 

of  the  internal  revenue  laws  of  the  United  States,  and  with  design 
to  avoid  the  payment  of  such  duties  and  taxes,  against  the  provis- 
ions of  the  section  aforesaid. 

That  the  said  goods,  wares  and  merchandise,  articles,  and  objects, 
except  the  said  ,  were  raw  materials,  tools,  implements, 

instruments  and  personal  property  in  the  place  and  building  and 
within  the  yard  and  enclosure  where  said  articles  upon  which  duties 
are  and  were  imposed  as  aforesaid  were  found  and  seized  by  the  said 
,  as  such  collector  as  aforesaid,  at  the  time  and  place  afore- 
said, and  were  intended  to  be  used  by  in  the  fraudulent 
manufacture  by  the  said  of  such  raw  materials  as  afore- 
said into  highwines,  whisky,  distilled  spirits  and  spirituous  liquors, 
and  in  fraud  of  the  internal  revenue  laws  of  the  United   States, 


FORMS    IN   ADMIRALTY.  755 

and  with  the  design  to  avoid  the  payment  of  the  duties  imposed  by 
the  before-mentioned  statutes,  and  against  the  section 

thereof. 

That  upon  said  goods,  wares,  merchandise,  articles  and  objects, 
duties  and  taxes  are  imposed  by  the  provisions  of  the  sec- 

tion of  the  statute  aforesaid. 

That  the  said  goods,  wares  and  merchandise,  articles  and  objects, 
then  and  there  being  so  subject  to  the  payment  of  duties  and  taxes 
as  aforesaid,  were  found  by  the  said  ,  collector,  in  the 

possession  and   custody  and  within  the  control  of  ,  at 

,  within  the  said  collection  district,  in  the 

district  of  ,  for  the  purpose  of  being  sold 

by  said  ,  in  fraud  of  the  said  internal  revenue  law,  and 

with  design  to  avoid  the  payment  of  such  duties  and  taxes,  against 
the  provisions  of  section  of  the  statutes  aforesaid. 

That  the  said  goods,  wares  and  merchandise,  articles  and  objects, 
then  and  there  being  so  subject  to  the  payment  of  duties  and  taxes 
as  aforesaid,  were  found  by  the  said  ,  collector,  in  the 

possession  and  custody  and  within  the  control  of  the  said  , 

at  ,  aforesaid,  for  the  purpose  of  being  removed  by  him 

in  fraud  of  the  internal  revenue  laws,  and  with  the  design  to  avoid 
the  payment  of  such  duties  and  taxes,  against  the  provisions  of  sec- 
tion of  the  statutes  aforesaid. 

Second.  For  that  the  aforesaid  goods,  wares  and  merchandise, 
articles  and  objects,  ,  and  distilled  spirits,  were  liable  to 

taxation  under  and  pursuant  to  the  statutes  in  such  case  made  and 
provided,  and  the  said  and  distilled  spirits  were  so  as 

aforesaid  found  and  seized  at  ,  in  the  collection 

district   of  the  state  of  ,  in   the  district  of 

,  and  within  the  jurisdiction  of  this  court,  by  the  said 
,  as  such  collector,  on  the  said  day  of  , 

A.  D.  18  ,  the  said  distilled  spirits  having  been  made,  manufac- 
tured and  distilled  at  some  place,  at  some  time,  and  by  some  person 
or  persons  to  the  said  United  States  and  their  said  attorney  un- 
known, and  the  same  were  thereafter,  and  before  the  time  of  the 
finding  and  seizure  thereof,  as  aforesaid,  by  some  person  or  persons 
to  the  said  United  States  and  their  said  attorney  unknown,  re- 
moved from  the  place  where  the  same  were  distilled,  otherwise  than 
into  a  bonded  warehouse,  as  provided  by  law ;  and  the  said 


75G  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

and  distilled  spirits  were,  by  the  said  ,  as  such  collector, 

as  aforesaid,  found  and  seized  at  the  time  and  place  aforesaid,  the 
said  and  distilled  spirits  being  so  found  elsewhere  than 

in  a  bonded  warehouse,  not  having  been  removed  from  such  ware- 
house, according  to  law,  and  the  tax  imposed  by  law  upon  the  same 
not  having  been  paid,  in  fraud  of  the  internal  revenue  laws,  and 
against  the  provisions  of  the  statutes  aforesaid. 


Form  No.  165. 

Attachment  in  rem  in  proceedings  for  forfeiture. 

United  States,  1 

district  of  .      j 

The  President  of  the  United  States  to  the  marshal  of  the 
district  of 

You  are  hereby  commanded  forthwith  to  seize  and  attach  , 

lately  in  the  possession  of  ,  as  the  same  now  are,  and 

the  same  safely  keep,  to  abide  the  final  order  and  decree  of  the  dis- 
trict court  of  the  United  States  for  the  district  of  ,  in 
a  certain  plea  or  information  herein  prosecuted  against  the  said 
property,  etc.,  by  the  United  States  of  America,  libellants,  for  for- 
feiture, etc.  And  you  are  further  commanded,  in  the  name  and  by 
the  authority  aforesaid,  to  cite  and  admonish  the  said 
and  generally  all  others  herein  concerned,  so  that  they  be  and  ap- 
pear at  a  special  session  of  said  court,  to  be  holden  at  , 
on  the  day  of  ,  at  ten  o'clock  in  the  forenoon  of 
the  same  day,  then  and  there  to  show  cause,  if  any  they  have,  why 
the  said  property,  etc.,  should  not  be  condemned  as  forfeited  for 
the  causes  in  said  libel  or  information  set  forth.  And  have  you 
then  there  this  writ. 

Witness  the  honorable  ,  judge  of  the  said  court,  at 

,  this  day  of  ,  A.  D.  18     ,  and  in 

the  year  of  the  independence  of  the  United  States. 

,  Clerk  district  coi^rt  of  the  United  States. 


forms  in  admiralty. 
Form  No.  166. 

Taxed  bill  costs. 

United  States  circuit  court,  district  of 

The  United  States       ^ 

V. 


Ibl 


Clerk's  costs  on  seizure  in  revenue  case. 


Filing         ,  10  cts.  ;  entering  order  for  process  and  copy, 

25  cts., 

Issuing  process,  $1,  seal,  20  cts.,      .         .         .  .         . 

Draft  report  to  the   Solicitor  of  the  Treasury,  fol.  1  ^and 

copy,  and  entering,  40  cts.  ;  filing,  10  cts., 
Draft  and  two  copies  certificate  of  substance  of  information 

from  files  for  publication  by  the  U.  S.  marshal,  fol. 

at  35  cts.,         ........ 

Order  to  return  monition  and  copy,  25  cts. ;  filing  monition 

and  return,  20  cts. ;  entering  return,  15  cts.,     . 
Order  for  proclamations   and  copy,  25  cts. ;  order  for  de- 
faults and  copy,  25  cts.,   ...... 

Order  for  condemnation,   15  cts.,  sale,  15  cts.,  copies  at 

10  cts.  each,    ........ 

Drawing  decree  and  entering,  fol.         at  15  cts. ;  copy  at 

10  cts.;  filing,  10  cts.,     ..... 
Order  for  venditioni  exponas,  15  cts. ;  copy,  10  cts.. 
Issuing  venditioni  exponas,  $1 ;  seal,  20  cts.,    . 
Drawing  final  records  with  pleadings,  etc.,  fol.     at  15  cts 
Drawing  copy  records  with  pleadings,  etc.,  fol.     at  10  cts. 

filing,  10  cts.,  ...... 

Order  to  return  venditioni  exponas,  15  cts. ;  copy,  10  cts 
Filing  venditioni  exponas,  10  cts. ;  filing  return,  10  cts. 

entering  return,  15  cts.,    ..... 
Drawing  and  copy  report  to  solicitor,  fol.     at  25   cts. 

filing,  10  cts.,  ...... 

Clerk's  fee  for  receiving,  keeping  and  paying  out  %        ,  at 

1  per  cent.,     ....... 

Drawing    abstract,  15  cts.  per  fol. ;  copy,  10  cts. ;  filing 

10  cts.,    .         .         .    • 

Order  for  distribution  and  copy,  25  cts.,  . 

Taxing  district  attorney's  cost,  $1;  filing,  10  cts.,     . 


^0  35 
1  20 

50 


60 
50 
50 

25 
1  20 

25 
35 


25 
1  10 


758 


FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 


filing,  10  cts. ;  filing  vouchers 


recording,  etc.,  to  pay 
recording,  etc.,  to  pay 
recording,  etc.,  to  pay 
recording,  etc.,  to  pay 
at 


Taxing  marshal's  cost, 

at  10  cts.. 
Clerk's  fee  on  entering  order-check, 

marshal's  costs. 
Clerk's  fee  on  entering  order-check, 

district  attorney  and  clerk. 
Clerk's  fee  on  entering  order-check, 

informer's  moiety,    . 
Clerk's  fee  on  entering  order-check, 

collector's  net  proceeds,    . 
Drawing  and  copy  receipts  for  amounts   paid,  fol 

25  cts.;  filing  same  at  10  cts.  each,  .         .         .         . 
Copy  of  abstracts  and  receipts  from  files  for  solicitor  and 

collector,  fol.     at  10  cts., 
Drawing  certificates,  15  cts.;  copies  at  10  cts., 
Entries  in  ledger,  15  cts. ;  copy  costs  from  files,  fol.     at 

10  cts., 

Filing  clerk's  cost,  10  cts. ;  making  dockets  and  indexes,  $1 
Drawing  and  copy  report  to  solicitor  of  suit  decided,  fol.  1 

25  cts.;  entering,  15  cts.;  filing,  10  cts.. 
Duplicate  copies  from  the  files  of  monition,  decree,  vendi 

tioni  exponas,  abstracts,  account  sales,  district  attorney 

marshal  and  clerk's  costs  for  collector,  fol.     at  10  cts 
Certifying  each  at  25  cts. ;  seals  at  20  cts.. 
Draft  and  two  copies  of  affidavit  of  services  of  clerk,  etc 

fol.  1  and  entry,       ...... 

Oath  to  same  and  certificate,  25  cts.;  oath  to  marshal's 

costs  and  certificate,  25  cts.,     .         .         .         .         . 


1  60 


1  CO 


1  GO 


1  60 


1  10 


50 


90 


50 


Taxed  and  adjusted  at 


E.  F. 


dollars. 
Clerk  of  the  U.  S.  circuit  court. 


U.  S.  Circuit  Court,     |^ 

DISTRICT  OF  .       j 


S8 


,  clerk,  being  duly  sworn,  deposes  and  says  that  the 
services  charged  herein  have  been  or  will  be  actually  and  necessarily 
performed  as  herein  stated,  to  the  knowledge  of  this  deponent,  and 


FORMS   IN   ADMIRALTY.  759 

are,  as  this  deponent  believes,  in   accordance  with  the  fee  bill  of 
1853. 

Sworn  to  before  me  this  day  of  ,  18     . 

G.  H.,  U.  S.  commissioner. 


Form  No.  167. 

Bills  of  taxed  costs. 

United  States  district  court,  district  of 


1 


V.  V  Proctor's  bill. 

Docket  fee  (decree  over  fifty  dollars),        .... 

Verification  of  libel,  25  cts. ;  verification  of  costs,  25  cts., 

Four  depositions  taken  and  admitted  as  evidence. 

Paid  one  witness  attending  three  days,      .         .         .         . 

Paid  120  miles  travel,  5  cts.  per  mile,       .... 

Paid  two  witnesses  attending  one  day  each, 
Paid  travel  of  two   witnesses   150  miles   each,  5  cts.  per 
mile,        ......... 

Paid  one  witness  one  day,         ...... 

Paid  travelling  fee  for  same  60  miles,  5  cts.  per  mile. 
Paid  notary  public,  taking  depositions,      .  .          .  . 


$20 

00 

50 

10 

00 

4 

50 

6 

00 

3 

00 

15 

00 

1 

50 

8 

00 

,  15 

00 

$78  50 

Taxed  at  $78  50. 

United  States  of  America, 
district  of 


,  Clerk. 


G.  F.,  of  the  city  of  ,  being  duly  sworn,  deposes  and 

says  that  the  services  charged  for  in  the  foregoing  bill  have  been 
actually  and  necessarily  rendered  as  therein  stated ;  that  the  ex- 
penses therein  mentioned  have  been  actually  and  necessarily  in- 
curred as  therein  set  forth. 

Subscribed  and  sworn  before  me  this  day  of  ,  18     . 

G.  F.,  U.  S.  commissioner. 


7g0         federal  pleading,  practice  and  procedure. 

Form  No.  168. 

Marshal's  bill. 
United  States  district  court,  district  of 

V. 


Serving  mesne  process  at  ,         .         .         . 

Travel  to  serve  the  same,  10  miles,  6  cts.  per  mile,    . 
Proclamation,  ....... 

Expenses  of  custody  actually  paid,  124  days  at  50  cts., 
Oath  and  certificate  disbursements,  .         ... 

Paid  printer  for  publishing  notice  of  arrest, 
Serving  warrant  to  sell,  ...... 

Travel  to  return  the  same,  10  miles,  6  cts.  per  mile, 
Paid  printer  for  publishing  notice  of  sale. 
Poundage  on  $4100,  amount  of  sale. 
Paid  for  storing  sales,      ...... 

Drawing  and  executing  deed,  ..... 

Paid  for  copy  of  enrollment,    ..... 

Percentage  on  disbursements,  .... 


Taxed  at  $154  20  this 


day  of 


,18 


$2  00 
60. 
30 

62  00 

50 

6  00 

2  00 
60 

3  40 
65  00 

5  00 

5  00 

50 

1  30 

$154  20 


,  Clerk. 


United  States  of  America, 


DISTRICT    OF 


ss . 


G.  H.,  deputy  marshal  of  the  said  district,  being  duly  sworn, 
deposes  and  says  that  the  services  charged  in  the  foregoing  bill 
have  been  actually  and  necessarily  performed  as  therein  stated,  and 
that  the  expenses  mentioned  in  said  bill  have  been  actually  and 
necessarily  incurred  as  therein  set  forth. 

Subscribed  and  sworn  before  me  this  day  of  ,  18     . 

G.  H.,  U.  S.  commissioner. 


FORMS   IN   ADMIRALTY. 


761 


Form  No.  169. 

Clerk's  bill. 
Unifed  States  district  court,  district  of 


Filing  libel,  10  cts. ;  entering  order  of  process,  $1,    . 
Issuing  process  and  seal,  $1  20 ;  marshal's  notices,  $1  20 
Filing  process,    10  cts. ;   entering  return,  15   cts. ;  filing 

stip.  10  cts.,     ....... 

Entering  four  orders  continuance,  one  folio  each  at  15  cts. 

engrossing  each,  10  cts.;  filing  each,  10  cts.. 
Filing  stip.,  10  cts. ;  entering  order  substitution,  15  cts. 

engrossing,  10  cts.;  filing,  10  cts.,    . 
Filing  petition,   10  cts. ;  entering   order  sale,  two   folios 

30  cts.;  engrossing,  20  cts.;  filing,  10  cts., 
Issuing  warrant,  $1  20;  filing,  10  cts.. 
Filing  answer,         ....... 

Entering  order  for  payment  of  marshal's  bill,  15  cts. ;  eng. 

10  cts.;  filing,  10  cts.,      ..... 
Entering  order  for  trial,  15  cts. ;  swearing  two  witnesses 

20  cts., 

Docket  fee,  $3 ;  entering  final  decree,  four  folios,  15  cts 

each;  engrossing,  40  cts.;  filing,  10  cts.,  . 
Making  enrollment,  eight  folios,  15  cts.  each,  . 
Drawing  four  order  checks,  30  cts. ;  copying  each,  20  cts. 

entering  each  in  ledger,  15  cts.. 
Filing  three  bills  of  costs,  30  cts.;  filing  five  other  papers 

50  cts.,   ........ 

Percentage  on  $3500,      .         .         .         . 

Taking  testimony  on  trial,  thirty  folios,    . 


Taxed  and  allowed  at  $58  20. 


1 

10 

2 

40 

35 

1 

40 

45 

70 

1 

30 

10 

35 

35 

4 

10 

1 

20 

2  60 


80 

35 

00 

6 

00 

$68 

20 

,  Judge. 


762    federal  pleading,  practice  and  procedure. 

Form  No.  170. 

United  States  district  attorney's  costs. 
United  States  district  court,  district  of 


V. 


Two  per  cent,  on  $303  48,  proceeds  of  sale,     .         .         .     $6  07 
Taxed  at  $6  07  this  day  of  ,  18      . 


,  Clerk. 


United  States  of  America, 

y  ss 
district  of 


G.  F.,  of  the  said  district,  being  duly  sworn,  says  that  he  is  the 
U.  S.  district  attorney  for  said  district ;  that  the  services  charged 
in  the  foregoing  bill  have  been  actually  and  necessarily  performed 
as  therein  stated ;  and  that  the  same  or  any  part  thereof  have  not 
been  paid,  G.  F. 

Subscribed  and  sworn  before  me,  this  day  of  ,  18     . 

,  U.  S.  commissioner  for  the  district  of 


Form  No.  171. 

Certificate  of  license  as  counsellor. 

United  States  of  America, 


ss 
district  of 

I,  ,  clerk  of  the  circuit  court  of  the  United  States 

for  the  district  of  ,  in  the  circuit,  do  hereby 

certify  that  for  attorney]  has  been  duly  admitted  and 

sworn  as  a  counsellor  of  the  said  court,  and  has  signed  the  proper 
roll  in  this  office. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  the  seal  of 
the  said  court,  this  day  of  ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  ,  and  of  the  inde- 

pendence of  the  United  States  of  America  the 

,  Clerk. 


i 


forms  in  admiralty.  763 

Form  No.  172. 

Certificate  to  a  transcript  of  record. 

United  States  of  America, 
dlstrict  of 

I,  ,  clerk  of  the  circuit  court  of  the  United  States 

of  America  for  the  district  of  ,  in  the 

circuit,  do  hereby  certify  that  the  foregoing  pages,  numbered  from 
to  inclusive,  contain  a  true  and  complete  tran- 

script of  the  record  and  proceedings  had  in  said  court,  in  the 
case  of  against  ,  as  the  same  remain  of  record 

and  on  file  in  said  office. 

In  testimony  whereof,  I  have  caused  the  seal  of  the  said  court  to 
be  hereunto  affixed,  at  the  city  of  ,  in  the  district 

of  ,  in  the  circuit,  this  day  of  , 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and  , 

and  of  the  independence  of  the  said  United  States  the 

,  Clerk. 


FORMS  FOR  REMOVAL  OF  CAUSES. 


Form  No.  175. 

Petition  for  removal  in  criminal  cases,  under  section  643  of  Revised 

Statutes. 

[Title  of  cause.] 

To  the  circuit  court  of  the  United  States  in  the  district  of 

Your  petitioner,  ,  defendant  in  the  above-entitled 

cause,  respectfully  represents : 

That  on  the  day  of  ,  18       ,  at  the 

term  of  said  court,  at  the  instance  of  ,  as  prosecutor,  your 

petitioner  was  indicted  for  -willfully,  premeditatedly  and  of  malice 
aforethought  killing  one  ,  which  indictment  and  crimi- 

nal prosecution  so  instituted  is  still  pending  in  said  court  against 
your  petitioner. 

Your  petitioner  further  represents  that  no  murder  was  committed 
by  the  killing  aforesaid,  but  in  fact  the  killing  was  committed  in 
the  necessary  self-defence  of  the  defendant,  your  petitioner,  and 
to  save  his  own  life ;  that  at  the  time  the  alleged  oiFence  was  com- 
mitted he  was  an  officer  of  the  United  States,  to  wit,  a  deputy  col- 
lector of  internal  revenue,  and  the  act  for  which  he  was  indicted 
was  done  in  his  own  necessary  self-defence,  while  engaged  in  the 
discharge  of  the  duties  of  his  office  as  said  deputy  collector  of  in- 
ternal revenue ;  that  he  was  at  the  time  acting  by  and  under  the 
authority  of  the  internal  revenue  laws  of  the  United  States,  and 
under  and  by  right  of  his  office  as  deputy  collector  of  internal 
revenue  of  the  United  States ;  that  it  became,  and  was,  his  duty, 
under  said  revenue  laws,  to  seize  illicit  distilleries  and  the  apparatus 
that  was  used  for  the  illicit  and  unlawful  distillation  of  spirits,  and 
while  so  attempting  to  enforce  said  revenue  laws  as  deputy  collector 
aforesaid,  he  was  assaulted  and  resisted,  and  fired  upon  by  a  num- 
ber of  armed  men,  and  in  defence  of  his  life  returned  fire,  which  is 
the  act  for  which  he  was  indicted. 

Your  petitioner  therefore  prays  that  said  cause  may  be  removed 
from  the  court  of  county,  in  the  state  of  , 


FOEMS    FOR   REMOVAL    OF    CAUSES.  765 

to  the  circuit  court  of  the  United  States  for  the  district  of  , 

and  that  a  certiorari  may  issue  therefor. 

G.  F.,  Attorney  for  the  petitioner. 


AFFIDAVIT   TO    PETITION. 


State  of 

COUNTY  of 


. } 


I,  ,  being  duly  sworn,  depose  and  say  that  I  am  the 

petitioner  named  in  the  foregoing  petition,  that  I  have  read  the 
same,  and  that  the  matters  and  things  therein  contained  are  true  of 
my  own  knowledge. 

,  Petitioner. 

Subscribed  and  sworn  to  before  me  this  day  of  , 

18     .  G.  H.,  Commissioner  of  U.  S.  circuit  court. 

CERTIFICATE    OF    COUNSEL. 

I,  G.  F,,  being  an  attorney  at  law  of  the  supreme  court  [or  other 
court]  of  the  state,  the  same  being  a  court  of  record,  do  hereby 
certify  that  as  counsel  for  the  petitioner  in  the  foregoing  petition 
named,  I  have  examined  the  proceedings  against  him  mentioned 
therein,  and  carefully  inquired  into  the  matters  therein  set  forth, 
and  that  I  believe  them  to  be  true. 

G.  F.,  Attorney  for  the  petitioner. 


Form  No.  176. 

Certiorari,  for  removal  case  from  state  court. 

The  President  of  the  United  States  of  America  to  the  court 

of  the  state  of  ,  in  the  judicial  district, 

G-reeting : 

Being  informed  that  there  is  now  pending  before  you  a  suit  in 
which  is  plaintiff  and  defendant,  which  suit  was 

commenced  in  said  court  against  the  said  for  and 

on  account  of  acts  done  by  him  under  the  revenue  laws  of  the 
United  States ;  that  said  suit  was  commenced  by  summons  and 
complaint,  and  that  said  suit  has  not  been  tried,  and  we  being  will- 
ing for  certain  reasons  that  the  said  cause  and  the  records  and  pro- 


766  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

ceeclings  therein  should  be  certified  by  the  said  court,  and  removed 
into  our  circuit  court  of  the  United  States  in  and  for  the 
district  of  ;  do  hereby  command  you  that  you  send  ■without 

delay  to  the  said  circuit  court,  as  aforesaid,  the  record  and  proceed- 
ings in  said  cause,  so  that  the  said  circuit  court  may  act  thereon  as 
of  right  and  according  to  law  ought  to  be  done. 

Witness   the  honorable  Salmon  P.   Chase,  Chief  Justice  of  the 
Supreme  Court  of  the  United  States,  at  ,  the  day 

of  ,  A.  D.  18     . 


,  Clerk. 


,  Attorney  for  plaintiff  in  error. 

Service  of  the  within  is  hereby  admitted  this  day  of 

A.  D.  18     . 


Form  No.  177. 

Petition  for  removal  case,  under  section  2  of  act  of  March  3,  1875. 

court,  state  of  ,  county  of 

A.  B. 

V. 

CD. 

The  petition  of  ,  the  above-named  defendant  [or  plain- 

tiff], shows  to  the  court  that  the  above  suit  was  begun  against  him 
in  the  court  of  the  state  of  ,  on  or  about  the . 

day  of  ,  18     . 

That  at  the  time  said  suit  was  begun,  and  at  the  present  time, 
the  plaintiff  [or  defendant]  was  and  is  a  citizen  and  resident  of  the 
state  of  ,  and  the  defendant  [or  plaintiff]  Avas  and  is  a  cit- 

izen and  resident  of  the  state  of 

That  the  matter  in  dispute  in  said  suit,  and  for  which  said  suit  is 
brought,  exceeds  the  sifm  of  dollars  exclusive  of  costs,  and 

the  defendant  herewith  files  a  bond  with  good  and  sufiicient  sure- 
ties for  his  entering  in  the  circuit  court  of  the  United  States  for 
the  district  of  ,  wherein  said  suit  is  pending,  on  the 

first  day  of  the  next  session  of  said  court,  a  copy  of  the  record  in 
said  suit  [and  also  for  his  appearing  in  said  circuit  court,  and  en- 
tering special  bail  if  required],  and  for  paying  all  costs  that  ma}^ 


FORMS    FOR   REMOVAL    OF    CAUSES.  767 

be  awarded  by  said  circuit  court  if  said  court  shall  hold  that  such 
suit  was  wrongfully  or  improperly  removed  thereto,  as  provided  by 
the  statute  of  the  United  States. 

Wherefore  the  defendant  [or  plaintiff]  prays  this  honorable  court 
that  said  bond  may  be  approved  and  said  suit  be  removed  into  the 
circuit  court  of  the  United  States  for  the  district  of  , 

and  that  this  court  proceed  no  further  in  the  premises. 

A.  B.  [or  C.  D.],  Petitioner. 

State  of 


county  or 

A.  B.,  being  duly  sworn,  says  that  he  is  the  defendant  in  the 
above-entitled  action,  and  has  read  the  foregoing  petition  subscribed 
by  him,  and  knows  the  contents  thereof,  and  that  the  same  is  true 
of  his  own  knowledge. 

Sworn  to  before  me  this  day  of  ,  a.  d.  18     . 

,  Clerk. 


Form  No.  178. 

Bond  on  a  removal  w^ith  afiidavit,  etc. 

Know  all  men  by  these  presents,  that  we,  ,  of  the  city  of 

,  and  ,  of  the  city  of  ,  and  ,  of  the 

city  of  ,  are  jointly  and  severally  held  and  firmly  bound 

unto  in  the  penal  sum  of  dollars,  for  which  well 

and  truly  to  be  paid  unto  said  ,  his  heirs,  executors,  admin- 

istrators and  assigns,  we  bind  ourselves,  our  heirs,  executors  and 
assigns  and  administrators  firmly  by  these  presents.  Sealed  with 
our  seal,  this  day  of  ,  a.  D.  18     . 

The  condition  of  this  obligation  is  such  that  if  the  said  , 

defendant  [or  plaintiff]  in  a  suit  now  pending  in  the  supreme  court 
^f  the  state  of  ,  for  the  county  of  ,  shall  on  the 

first  day  of  the  next  session  or  term  of  the  circuit  court  of  the 
United  States  for  the  district  of  ,  enter  a  copy  of 

the  record  in  said  suit,  and  shall  enter  the  appearance  of  said 
in  said  circuit  court  of  the  United  States,  and  shall  enter 
special  bail  in  the  cause,  if  special  bail  were  originally  required, 
and  pay  all  costs  that  may  be  awarded  against  him  by  said  circuit 


768  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

court  if  such  court  shall  hold  that  said  suit  was  ^Yrongfully  or  im- 
properly removed  from  said  state  court,  then  this  obligation  to  be 
void,  and  otherwise  to  remain  in  full  force  and  effect. 

In   witness  whereof,  the  said  obligors   have  hereunto  set  their 
hands  and  seals  this  day  of  ,  a.  d.  18     . 

State  of 
county  of 

On  this  day  of  ,  A.  D.  18      ,  before  me  person- 

ally came  and  ,  to  me  personally  known  and  known 

to  me  to  be  the  persons  who  executed  the  foregoing  bond,  and  ac- 
knowledged that  they  executed  the  same  for  the  uses  and  purposes 
therein  mentioned. 

G.  11.,  Circuit  court  commissioner. 


Form  No.  179. 

Petition  for  the  transfer  of  a  cause  from  a  state  to  a  circuit  court, 
under  the  Revised  Statutes  of  the  United  States,  section  639, 
subdivision  3. 

In  the  court  of  county,  state  of 

A.  B.       "i 

I  Petition  for  the  transfer  of  this  cause  to  the  circuit 

C.  D.      j      ''"'''• 
To  the  honorable  the  court  of  county,  state  of 

Your  petitioner,  ,  respectfully  shows  that  he  is  plaintiff 

[or  defendant]  in  the  above-entitled  suit,  and  that  the  same  was 
commenced  on  or  about  the  day  of  ,  18       ,  in 

said  court ;    that  your  petitioner  was  at  the  time  of  the 

iH'inging  said  suit,  and  still  is,  a  citizen  of  the  state  of  , 

and  a  resident  thereof;  that  said  action  was  brought  for  the  pur- 
pose of  [here  state  the  nature  of  the  suit  and  the  relief  asked],  and 
that  the  matter  in  dispute  in  said  suit  exceeds  the  sum  of  five  hun- 
dred dollars,  exclusive  of  costs. 

Your  petitioner  further  states  that  the  suit  has  not  been  tried, 
but  is  now  pending  for  trial  in  the  court  of  the  state  of 

for  said  county  of  ,  and  that  he  desires  to  re- 

move the  same  into  the  circuit  court  of  the  United  States  for  the 
district  of  ,  in  pursuance  of  the  statute  in  that  behalf  pro- 

vided ;  to  wit,  subdivision  3  of  section  639  of  the  Revised  Statutes 
of  the  United  States. 


FORMS    FOR    REMOVAL    OF    CAUSES.  769 

Your  petitioner  further  says  that  he  has  filed  herewith  the  affi- 
davit required  by  the  statute  in  such  cases,  and  offers  here  his 
bond,  executed  by  ,  with  good  and  sufficient  surety,  in  the 

penal  sum  of  ,  as  required  by  said  statutes  on  the  removal 

of  a  cause. 

Your  petitioner  therefore  prays  that  the  said  bond  may  be  ac- 
cepted as  good  and  sufficient,  and  that  the  said  suit  may  be  removed 
into  the  next  circuit  court  of  the  United  States  in  and  for  said  dis- 
trict of  ,  pursuant  to  the  statute  aforesaid,  and  that  no 
further  proceedings  may  be  had  therein  in  this  court. 

G.  F.,  Attorney  for  plaintiff  [or  attorney  for  defendant]. 


Form  No.  180. 

Form  of  affidavit  of  prejudice  or  local  influence  to  accompany  the 
petition  under  the  provisions  of  paragraph  3,  section  639  of  the 
Revised  Statutes. 

In  the  court,  county,  state  of 

A.  B.,  plaintiffs,  ^ 

V.  V  Affidavits  of  prejudice. 

C.  D,,  defendants.       J 
State  of  ,  county  of  ,  ss: 

I,  ,  being  duly  sworn,  do  say  that  I  am  in 

the  above-entitled  cause ;  that  I  have  reason  to  believe,  and  do  be- 
lieve, that  from  prejudice  and  local  influence  I  will  not  be  able  to 
obtain  justice  in  said  state  court. 

Subscribed  by  the  said  ,  in  my  presence,   and  by  him 

sworn  to  before  me,  at  ,  this  day  of  , 

A.  D.  18      .  A.  B. 

[l.  s.  ]  E.  F.,  Notary  public  in  and  for  county. 


Form  No.  181. 

Form  of  bond  to  accompany  the  petition  for  removal. 

[Title  of  cause.] 

Know  all  men  by  these  presents. 

That  ,  as  principal,  and  ,  of  ,  as  surety, 

are  held  and  firmly  bound  unto  ,  in  the  penal  sum  of 

49 


770  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

dollars,  for  the  payment  of  which,  -well  and  truly  to  be  made,  we 
bind  ourselves  jointly  and  severally  firmly  by  these  presents. 

The  condition  of  this  obligation  is  such  that  if  shall 

enter  and  file,  in  the  next  session  of  the  circuit  court  of  the  United 
States  in  and  for  the  district  of  ,  on  the  first  day 

of  its  session,  coj'ies  of  all  process,  pleadings,  depositions,  testimony 
and  other  proceedings  in  a  certain  suit  or  action  now  pending  in 
the  court  of  the  county  of  and  state  of  , 

in  which  is  plaintiff  and  defendant,  and  shall 

do  such  other  appropriate  acts  as,  by  the  statutes  of  the  United 
States,  are  required  in  that  behalf,  upon  the  removal  of  a  suit  from 
a  state  court  into  the  said  United  States  court,  then  this  obligation 
to  be  void,  otherwise  of  force. 
Dated  ,  a.  d.  18     . 

A.  B. 

C.  D. 
State  of 


ss 
county. 

I,  ,  of  said  county,  the  surety  named  in  the  foregoing 

bond,  being  duly  sworn,  do  depose  and  say  that  I  am  a  resident  of 
the  state  of  ,  and  a  property  holder  therein ;  that  I  am 

worth  the  sum  of  dollars,  over  and  above  all  my  debts  and 

liabilities,  and  exclusive  of  property  by  law  exempt  from  execution  ; 
that  I  have  property  in  the  state  of  ,  liable  to  execution, 

of  the  value  of  more  than  hundred  dollars. 

C.  D. 

Subscribed  in  my  presence  by  ,  and  by  him  sworn  to 

before  me  this  day  of  ,  18     . 

,  Clerk.  - 

Form  No.  182. 

Form  of  petition  for  removal  where  the  adverse  parties  are  all  citi- 
zens of  different  states. 

In  the  court  of  county,  state  of 

A.  B.  and  C.  D.,  plaintiffs,    ^ 

V.  y  Petition  for  removal. 

E.  F.  and  G.  H.,  defendants.  J 
To  said  court : 

Your  petitioner,  E.  F.,  respectfully  shows  to  this  honorable  court 


FORMS   FOR   REMOVAL    OF    CAUSES.  771 

that  the  amount  in  dispute  in  the  above-entitled  suit  exceeds,  ex- 
clusive of  costs,  the  sum  or  value  of  five  hundred  dollars ;  that  the 
controversy  in  said  suit  is  betweeti  citizens  of  different  states ;  that 
each  adverse  party  is  a  citizen  of  different  states ;  that  your  peti- 
tioner was,  at  the  time  of  the  commencement  of  this  suit,  and 
still  is,  a  citizen  of  the  state  of  ,  and  that  then 

was,  and  still  is,  a  citizen  of  the  state  of  ,  and  that 

then  was,  and  still  is,  a  citizen  of  the  state  of  [and  so 

state  the  citizenship  of  other  parties]. 

Your  petitioner  offers  herewith  a  bond  with  good  and  sufficient 
surety  for  his  entering  in  said  circuit  court  of  the  United  States, 
on  the  first  day  of  its  next  session,  a  copy  of  the  record  in  this  suit, 
and  for  paying  all  costs  that  may  be  awarded  by  said  circuit  court, 
if  said  court  shall  hold  that  this  suit  was  wrongfully  or  improperly 
removed  thereto.  And  he  prays  this  court  to  proceed  no  further 
herein,  except  to  make  the  order  of  removal  required  by  law,  and 
to  accept  the  said  surety  and  bond,  and  to  cause  the  record  herein 
to  be  removed  into  said  circuit  court  of  the  United  States  in  and 
for  the  district  of 

E.  F.,  by  G.  H.,  his  attorney. 

[If  verified,  which  is  not  required  by  the  statute,  it  may  be  in  the 
following  form  :] 

State  of  ,  ] 

y  ss: 
county,  j 

I,  E.  F.,  being  duly  sworn,  do  say  that  I  am  one  of  the  defendants 
in  the  above-entitled  cause ;  that  I  have  read  the  foregoing  petition 
and  know  the  contents  thereof;  and  that  the  statements  and  alle- 
gations therein  contained  are  true,  as  I  verily  believe. 

Subscribed  by  the  said  in  my  presence,  and  by  him 

sworn  to  before  me,  this  the  day  of  ,  a.  d,  18     . 

I.  J. 


Form  No.  183. 

Bond  for  the  removal  of  a  cause  under  the  act  of  March  3,  1875. 

[Title  of  cause.] 

Know  all  men  by  these  presents,  that  I,  ,  as 

principal,  and  ,  as  surety,  are  held  and  firmly  bound 


772  FEDERAL    PLEADING,    PRACTICE    AND   PROCEDURE. 

unto  in  the  penal  sum  of  dollars,  the  pay- 

ment whereof  well  and  truly  to  be  made  unto  the  said  , 

heirs  and  assigns,  we  bind  ourselves,  our  heirs,  representatives  and 
assigns,  jointly  and  severally,  firmly  by  these  presents. 

Yet  upon  these  conditions  :  The  said  having  petitioned 

the  court  of  county,  state  of  ,  for  the 

removal  of  a  certain  cause  therein  pending,  wherein 
is  plaintiff  and  defendant     ,  to  the  circuit  court  of  the 

United  States  in  and  for  the  district  of 

Now,  if  the  said  ,  your  petitioner,  shall  enter  in  the 

said  circuit  court  of  the  United  States,  on  the  first  day  of  its  next 
session,  a  copy  of  the  record  in  said  suit,  and  shall  well  and  truly 
pay  all  costs  that  may  be  awarded  by  the  said  circuit  court  of  the 
United  States,  if  said  court  shall  hold  that  said  suit  was  wrongfully 
or  improperly  removed  thereto  [if  special  bail  was  originally  req- 
uisite in  said  cause,  then  add,  "and  shall  then  and  there  appear 
and  enter  special  bail  in  said  suit"],  then  this  obligation  to  be  void ; 
otherwise  in  full  force,  and  virtue. 

Witness  our  hands  and  seals,  this  day  of  , 

A.  D.  18       . 

[L.  s.] 

[It  is  perhaps  advisable  that  the  sureties  justify,  but  it  does  not 
appear  to  be  absolutely  necessary.] 


Form  No.  184. 

Order  of  state  court  for  removal  of  cause. 

At  a  term  of  the  court,  held  at  the  in 

the  city  of  ,  on  the  day  of  ,  A.  D.  18 

Present : — Honorable  ,  justice. 

court,  county  of 
A.  B.      ^ 

C.  D.     J 

On  the  pleadings  and  proceedings  herein,  and  on  the  petition  and 
bond  filed  herein  by  the  defendant  under  the  statutes  of  the  United 
States,  and  on  motion  of  ,  defendant's  attorney,  it  is  or- 


FORMS   FOR   REMOVAL   OF   CAUSES.  773 

dered  that  tbe  security  offered  bj  the  defendant  be  accepted  and 
said  bond  approved,  and  that  the  state  court  proceed  no  further  in 
this  cause,  and  that  this  cause  be  removed  into  the  United  States 
circuit  court  in  and  for  the  district  of 

,  Clerk. 


Form  No.  184a. 

Notice  of  the  removal  of  a  cause. 
Circuit  court  of  for  the  circuit  of 

A.  B. 

V. 

C.  D. 
To  ,  attorney  for  the  plaintiif. 

You  will  please  take  notice  that  on  the  day  of  , 

18     ,  by  an  order  of  the  court  of  the  state  of  , 

the  above-entitled  cause  was  transferred  to  the  circuit  court  of  the 
United  States  for  the  circuit,  district  of 

H.  J.,  Defendant's  attorney. 

April         ,  18     . 


Form  No.  1845. 

Form  of  writ  of  certiorari  under   section  7  of  the  act  of   March  3, 

1875. 

The  President  of  the  United  States  of  America  to  the  judge  of  the 
court  of  [here  describe  the  state  court  by  name]. 
Whereas  it  has  been  represented  to  the  circuit  court  of  the  United 
States  for  the  district  of  that  a  certain  suit  was  com- 

menced in  the  court  of  [here  name  the  state  court],  where- 

in ,  a   citizen  of  the  state  of  ,  was  plaintiff  and 

,  a  citizen  of  the  state  of  ,  was  defendant,  and 

that  the  said  duly  filed  in  the  said  state  court  his  petition 

for  the  removal  of  said  cause  into  the  said  circuit  court  of  the 
United  States,  and  filed  with  said  petition  the  bond  with  surety  re- 
quired by  the  act  of  Congress  of  March  3, 1875,  entitled  "  An  act  to 
determine  the  jurisdiction  of  the  circuit  courts  of  the  United  States, 
and  to  regulate  the  removal  of  causes  from  state  courts,  and  for 


774  FEDERAL   PLEADING,    PRACTICE   AND   PROCEDURE. 

Other  purposes,"  and  that  the  clerk  of  the  said  state  court  above 
named  has  refused  to  the  said  petitioner  for  the  removal  of  said 
cause  a  copy  of  the  record  therein,  though  his  legal  fees  therefor 
were  tendered  by  the  said  petitioner : 

You,  therefore,  are  hereby  commanded  that  you  forthwith  certify, 
or  cause  to  be  certified,  to  the  said  circuit  court  of  the  United 
States  for  the  district  of  ,  a  full,  true  and  complete  copy 

of  the  record  and  proceedings  in  the  said  cause,  in  which  the  said 
petition  for  removal  was  filed  as  aforesaid,  plainly  and  distinctly, 
and  in  as  full  and  ample  a  manner  as  the  same  now  remain  before 
you,  together  with  this  writ ;  so  that  the  said  circuit  court  may  be 
able  to  proceed  thereon  and  do  what  to  them  shall  appear  to  them 
of  right  ought  to  be  done.     Herein  fail  not. 

Witness  the  honorable  Morrison  R.  Waite,  Chief  Justice  of  the 
Supreme  Court,  and  the  seal  of  the  said  circuit  court  hereto  affixed, 
this  the  day  of  ,  A.  D.  18     . 

,  Clerk  of  said  circuit  court. 


FORMS  m  CRIMINAL  CASES. 


Form  No.  185. 

Order  for  grand  jury. 

United  States  of  America, 


8S  ' 
DISTRICT    OF 

In  pursuance  of  the  authority  in  me  vested,  I  do  hereby  order 

and  appoint  that  a  grand  jury  be  drawn  and  summoned  to  serve  in 

the  circuit  court  of  the  United  States  of  America  in  and  for  the 

district  of  ,  at  a  session  of  said  court,  to 

be  held  at  the  court-house  in  ,  on  the  day  of 

,  18       ,  and  that  a  venire  issue  to  marshal  therefor. 

,  Judge  [or  justice]. 


Form  No.  186. 

Precept  to  marshal  for  grand  and  petit  jurors. 

The  President  of  the  United  States   of  America  to  the  marshal 
of  the  United  States  for  the  district  of  , 

Greeting : 
We  command  you  that  you  cause  to  come  before  a  circuit  court 
of  the  United  States  for  the  district  of  ,  to  be 

held  at  ,  in  the  city  of  ,  in  the  said  district  of 

,  on  the  day  of  ,  at  o'clock  in  the 

forenoon,  twenty-four  good  and  lawful  men  of  your  district,  to  in- 
quire for  the  United  States,  and  the  body  of  the  said  district,  and 
to  do  and  receive  all  those  things  which,  in  behalf  of  the  United 
States,  shall  then  and  there  be  enjoined  them ;  and  also  all  the 
prisoners  then  and  there  being  in  any  or  either  of  the  jails  of  said 
district,  with  their  attachment  and  all  other  muniments  in  anywise 
concerning  those  prisoners;  and  likewise  thirty-six  free  and  lawful 
men  resident  within  the  district  of  ,  of  the  age  of 

twenty-one  years  and  upwards  and  under  sixty  years  old  (who  are 


776  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

at  the  time  assessed  for  personal  property  belonging  to  them  in  their 
own  right  to  the  amount  of  two  hundred  and  fifty  dollars,  or  who 
shall  have  a  freehold  estate  in  real  property  in  the  said  district 
belonging  to  them  in  their  own  right  or  in  the  right  of  their  wives, 
to  the  value  of  one  hundred  and  fifty  dollars),  by  whom  the  truth  of 
the  matter  shall  be  better  known  and  inquired  into,  and  who  are 
in  no  wise  of  kin  to  the  plaintiffs  or  defendants  between  whom  the 
several  issues  joined  are  to  be  tried,  nor  to  those  prisoners. 

And  you  the  said  marshal  and  your  deputies,  in  your  and  their 
proper  persons,  shall  then  and  there  attend  to  do  all  those  things 
which  to  your  and  their  offices  appertain  to  be  done  in  that  behalf, 
and  have  you  then  there  the  names  of  those  jurors  and  those  prison- 
ers, and  this  writ. 

Witness  the  honorable  ,  Chief  Justice  of  the  Supreme 

Court  of  the   United  States,  at  the  city  of  ,  in  the  said 

district  of  ,  this  day  of  ,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  ,  and  of 

the  independence  of  the  United  States  the 

G.  F.,  U.  S.  district  attorney. 

H.  J.,  Clerk. 


Form  No.  187. 

Capias  or  bench  -warrant. 

The  President  of  the  United  States  of  America  to  the  marshal  of 
the  district  of  ,  Gfreeting  : 

We  command  you  that  you  arrest  ,  if  shall  be 

found   in  your  district,  and  that  you  safely  keep  so  that 

you  may  have  body  before  the  circuit  court  of  the  United 

States  of  America  for  the       .  district  of  ,  to  be  held 

at  ,  in  the  second  circuit,  in  and  for  the  said 

district  of  ,  before  the  judges  of  the  same  court,  on  the 

day  of  next,  to  answer  unto  the  United  States 

on  an  indictment  pending  and  on  file  against  him  for  ,  as 

will  more  fully  appear  by  reference  to  the  said  indictment,  and  that 
you  also  have  then  and  there  this  writ. 
[l,  s.]  Witness,  etc. 

,  Clerk. 


forms  in  criminal  cases.  777 

Form  No.  188. 

Common  frame  of  indictment. 

Circuit  [or  district]  court  of  the  United  States  of  America  for 
the  district  in  the  circuit,  begun  and  held  at  the 

city  of  ,  within  and  for  the  district  and  circuit  aforesaid,  on 

the  [state  the  day  and  date  of  the  beginning  of  the  term],  in  the 
year  one  thousand  eight  hundred  and  eighty-  ,  and  continued 

by  adjournment  from  said  day  to  and  including  the 

day  of  [the  day  of  the  finding  and  presentment  of  the  indictment], 
in  the  year  one  thousand  eight  hundred  and  eighty- 
District  of  ,  ss : 

The  jurors  of  the  United  States  of  America  within  and  for  the 
district  and  circuit  aforesaid,  on  their  oath  do  present  that  A.  B., 
late  of  ,  in  the  county  of  ,  in  the  district  and 

circuit  aforesaid,  merchant  [or  yeoman,  or  mariner,  or  as  the  case 
may  be],  heretofore,  to  wit,  on  the  day  of  ,  in  the 

year  one  thousand  eight  hundred  and  eighty-  (1),  at  the  dis- 

trict of  and  within  the  jurisdiction  of  this  court,  did  [here 

insert  words  charging  the  offence  according  to  the  facts  of  the  case, 
and  conclude  as  follows]  (2)  against  the  peace  of  the  said  United 
States  and  their  dignity,  and  against  the  form  of  the  statute  of  the 
United  States  in  such  case  made  and  provided. 

G.  F.,  United  States  district  attorney. 

ENDORSEMENT. 

A  true  bill.  K.  L.,  Foreman  of  the  grand  jury. 


Form  No.  189. 

Indictment  for  offence  on  the  high  seas. 

[The  form  of  the  commencement  of  the  indictment  may  be  as 
in  Form  No.  188  to  (1),  and  then  proceed  as  follows]  :  on  the 
high  seas,  within  the  admiralty  and  maritime  jurisdiction  of 
the  said  United  States,  and  out  of  the  jurisdiction  of  any  particular 
state  and  within  the  jurisdiction  of  this  court,  in  and  on  board 
a  certain  vessel,  to  wit,  the  ship  called  the  Lena  [or  a  vessel 
the  name  whereof  is  to  the  jurors  aforesaid  unknown],  the  same 
being  then  and  there  owned  by  and  belonging  in  whole  or  in  part 


778  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

to  a  citizen  or  citizens  of  the  United  States,  to  wit,  E.  F.  [and  G. 
H.],  late  of  the  district  aforesaid  [or  to  the  jurors  aforesaid  un- 
known], did  [here  insert  proper  charge  of  the  offence  as  required 
by  the  circumstances  of  the  case,  and  conclude  as  in  Form  No.  188 
from  (2)]. 


Form  No.  190. 

Indictment  for   offence    committed  at  a  place   ceded  to   the  United 

States. 

[Commence  same  as  in  Form  No.  188  to  figure  (1),  then  proceed] 
to  wit,  within  the  navy  yard  in  the  city  of  Philadelphia,  in  the 
district  aforesaid,  the  site  of  which  said  navy  yard  had  been  before 
the  said  day  of  ,.  in  the  year  last  aforesaid,  ceded  to  the 

United  States,  and  which  said  navy  yard  was  on  the  last-mentioned 
day  a  place  under  the  sole  and  exclusive  jurisdiction  of  the  said 
United  States,  and  out  of  the  jurisdiction  of  any  particular  state 
and  within  the  jurisdiction  of  this  court.  [Here  insert  words 
charging  the  offence  according  to  the  facts  and  circumstances  of  the 
case,  and  conclude  as  in  Form  No.  188.  If  other  counts  are 
necessary  or  desirable,  add  as  follows  :] 

Second  count.  And  the  jurors  aforesaid,  on  their  oath  aforesaid, 
do  further  present,  that,  etc. 

Third  count.  And  the  jurors  aforesaid,  on  their  oath  aforesaid, 
do  further  present,  that,  etc. 

[Averments  charging  the  offence,  and  conclude  as  in  Form 
No.  188.] 

Form  No.  191. 

Subpoena  to  testify. 

The  President  of  the   United  States  of  America  to  , 

Greeting : 
We  command  you  that  all  and  singular  business  and  excuses 
being  laid  aside,  you  and  each  of  you  be  and  appear  in  your  proper 
persons,  before  the  circuit  court  of  the  United  States  of  America 
for  the  district  of  ,  in  the  second  circuit,  at  , 

in  the  city  of  ,  in  the  said  district  of  ,  on 

the  day  of  ,  one  thousand  eight  hundred  and  , 


FORMS  IN  CRIMINAL  CASES.  779 

at  o'clock  in  the  noon  of  the  same  day,  to  testify 

all  and  singular  what  you  and  each  of  you  may  know  in  a  certain 
criminal  case  now  depending  undetermined  in  the  circuit  court  of 
the  United  States  for  the  district  of  ,  between  the 

United    States  of  America  v.  ,  defendant,  on  the  part  of 

the 

And  this  you  or  either  of  you  are  not  to  omit,  under  the  penalty 
upon  each  and  every  of  you  of  two  hundred  and  fifty  dollars. 

Witness,  honorable  ,  Chief  Justice  of  the  Supreme  Court 

of  the  United  States,  at  the  city  of  ,  the  day  of 

,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and 

H.  J.,  Clerk. 


Form  No.  192. 

Ca.  sa.  on  a  fine  imposed. 

The  President  of  the  United  States  of  America  to  the  marshal  of 
the  district  of  ,  Greeting : 

We  command  you  that  in  default  of  the  payment  of  fine 

imposed  on  ,  convicted  at  term  for  the  offence 

of  ,  you  do  make  the  same,  out  of  the  goods  and  chattels, 

lands  or  tenements  of  said  or  any  part  thereof;  and  if  no 

goods  or  chattels,  lands  or  tenements  of  the  said  can  be 

found,  or  not  sufiicient  to  satisfy  said  judgment,  then  that  you  do 
take  said  ,  if  shall  be  found  in  your  district,  and 

that  you  safely  keep  so  that  you  may  have  body 

before  the  circuit  court  of  the  United  States  of  America  for  the 
district  of  ,  to  be  held  at  ,  in  the  second  circuit, 

in  and  for  the  said  district  of  ,  before  the  judges  of 

the  same  court,  on  the  next,  to  answer  unto  the  United 

States  of  America,  and  that  you  also  have  then  and  there  this  writ. 

Witness  the  honorable  ,  Chief  Justice  of  the  Supreme 

Court  of  the  United  States  of  America,  at  ,  in  the  said 

district  of  ,  the  day  of  ,  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  sixty-  ,  and  of 

the  independence  of  the  said  United  States  the 

H.  J.,  Clerk. 

G.  F.,  Attorney. 


780    federal  pleading,  practice  and  procedure. 

Form  No.  193. 

Record  of  capias  ad  satisfaciendam. 
United  States  circuit  court,  district  of  • 

V.  V  Capias,  etc. 

Issued  on  order  of  United  States  attorney  to  imprison,  etc.,  de- 
fendant in  default  of  payment  of  fine  $  ,  imposed  by  order  of 
court  at                 term,  a.  d.  18     . 

,  Clerk. 


I 


Form  No.  194. 

Commitment  to  penitentiary. 

At  a  session  of  the  circuit  court  of  the  United  States  of  America 
for  the  district  of  ,  held  at  the  in 

the  said  district,  on  the   '  day  of  ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and 

Present: — The  honorable  ,  judge. 

United  States  circuit  court,  district  of 

The  United  States  of  America 

The  prisoner,  ,  having  been  indicted  and  arraigned,  and 

having  been  tried  and  convicted  of  the  offence  of  , 

the  court  now  here,  on  motion  of  Mr.  ,  United  States 

attorney,  does  adjudge  and  sentence  the  said  to  be 

imprisoned  in  the  at  ,  and  confined  at  hard 

labor  for  the  term  of 

And  it  is  further  ordered  and  adjudged  that  the  marshal  trans- 
port the  said  to  the  said  ,  and  deliver  him  the 
said  to  the  keeper  of  the  said  ,  and  that 
the  said  keeper  detain  the  said  prisoner  according  to  this  sentence ; 
and  that  the  clerk  of  this  court  immediately  certify  under  the  seal 
of  the  court,  and  deliver  to  the  marshal  of  the  district,  a  copy  of 
this  judgment,  sentence  and  order,  to  accompany  the  body  of  the 


FORMS  IN  CRIMINAL  CASES.  781 

said  ,  and  to  be  left  therewith  at  the  said  , 

the  said  copy  to  be  warrant  and  authority  for  the  transportation  and 
imprisonment  of  the  said  ,  as  hereinbefore  provided. 

I  certify  the  foregoing  to  be  a  true  copy  of  an  original  judgment, 
sentence  and  order  of  the  said  court,  as  filed  in  my  office. 

Witness  my  hand  and  the  seal  of  the  said  court,  this  day 

of  ,  A.  D.  18 

[l.  s.]  ,  Clerk. 


Form  No.  195. 

Certificates,  etc.,  on  division  of  opinion  in  a  criminal  cause. 

At  a  circuit  court  of  the  United  States,  begun  and  held  at  the 
city  of                 ,  for  the              district  of  ,  on  the 

day  of  ,  A.  D.  18         . 

Present : — Hon.  ,  judge. 

Present: — Hon.  ,  judge. 

United  States  circuit  court,  district  of 

This  is  an  indictment  against  the  defendant,  charging  him  with 
having  at  the  city  of  ,  in  the  state  of  ,  on  the 

day  of  ,  A.  D.  18     ,  knowingly  exercised  and 

carried  on  the  trade  or  business  of  a  lottery  ticket  dealer,  and  with 
having  sold  and  offered  to  sell  lottery  tickets  without  having  taken 
out  and  without  having  a  license  therefor,  according  to  the  provis- 
ions of  the  act  of  Congress  entitled  "An  act  to  provide  internal 
revenue,  and  to  pay  interest  on  the  public  debt,"  and  the  amend- 
ments thereof. 

The  defendant  demurs  to  said  indictment  and  the  matters  therein 
contained,  as  not  sufficient  in  law  to  compel  him  to  answer  the  same. 

The  government  joins  in  said  demurrer,  and  it  is  stipulated  by 
and  between  the  respective  parties,  in  writing,  that  the  defendant 
may  have  the  same  benefit  as  if  he  had  pleaded  specially  the  con- 
stitution and  several  laws  of  the  state  of  on  the  subject 
of  raffling    and   lotteries;  and  had  also  pleaded  specially  that  at 


782  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

the  several  times  mentioned  in  the  indictment,  he  Avas  a  citizen  of 
the  said  state,  and  exercised  and  carried  on  his  business  therein. 

The  case  coming  on  to  be  argued  at  this  term,  it  occurred  as  a 
question,  whether  the  defendant  could  be  legally  convicted  and 
punished  under  the  said  indictment,  and  the  acts  of  Congress  therein 
referred  to,  for  the  offence  of  carrying  on,  without  license  under  the 
said  acts  of  Congress,  the  business  mentioned  and  described  in  such 
indictment,  while  the  said  business  was  unlawful  and  wholly  pro- 
hibited by  the  laws  of  the  state  of  ,  and  said  defendant 
was  a  citizen  of  and  resident  therein,  and  while  said  business  could 
not  be  carried  on  by  the  said  defendant  as  alleged  in  said  indict- 
ment, without  his  being  liable  to  indictment,  conviction  and  punish- 
ment under  the  laws  and  statutes  of  said  state,  for  the  criminal 
offence  of  selling  lottery  tickets  and  carrying  on  said  business  in 
violation  of  said  statutes  of  said  state. 

On  which  question  the  opinions  of  the  judges  were  opposed. 

Whereupon,  on  motion  of  the  United  States,  by  their  district 
attorney  and  counsel,  that  the  point  on  which  the  disagreement  has 
happened  may,  during  the  term,  be  stated  under  the  direction  of  the 
judges,  and  certified  under  the  seal  of  the  court  to  the  Supreme 
Court,  to  be  finally  decided,  it  is  ordered  that  the  foregoing  statement 
of  the  pleading,  etc.,  and  the  following  statement,  made  under  the 
direction  of  the  judges,  be  certified,  according  to  the  request  of  the 
United  States,  by  their  attorney  and  counsel,  and  the  law  in  that 
case  made  and  provided,  to  wit :  That  the  sale  of  lottery  tickets 
and  the  carrying  on  of  the  business  mentioned  in  the  indictment  as 
therein  stated  was  then  and  there,  under  the  constitution  and  laws 
of  the  state  of  ,  a  criminal  offence ;  and  now  and  for  the 

last  ten  years  has  been  a  crime  punishable  by  indictment,  fine  and 
imprisonment  under  the  statutes  of  said  state. 

United  States  circuit  court,  district  of 

At  a  stated  session  of  the  circuit  court  of  the  United  States  of 
America,  held  in  and  for  the  district  of  on  the 

day  of  ,  A.  D.  18     ,  before  the  honorable  , 

judge  of  the  said  court,  assigned  to  keep  the  peace  of  the  said 
United  States  of  America  in  and  for  the  said  district,  and  also  to 
hear  and  determine  divers  felonies,  misdemeanors  and  other  offences 
against  the  said  United  Stales  of  America,  in  the  said  district  com- 


FORMS  IN  CRIMINAL  CASES.  783 

mitted,  good  and  lawful  men  of  the  said  district,  then  and 

there  sworn  and  charged  to  inquire  for  the  said  United  States  of 
America,  and  for  the  body  of  said  district,  do  upon  their  oaths 
present  that  ,  now  or  late  of  ,  in  the  county  of 

,  with  force  and  arms,  etc.,  to  wit,  at  ,  in  the 

county  of  ,  in  the  said  district  of  ,  and 

within  the  j.urisdiction  of  this  court,  heretofore,  to  wit,  on  the 
day  of  ,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  sixty  ,  and  on  divers  days  and  times  between  that  day 

and  the  finding  of  this  indictment,  did  knowingly,  feloniously  and 
unlawfully  exercise  and  carry  on  the  trade  or  business  of  , 

for  the  exercising  and  carrying  on  of  which  trade  or  business  a 
license  then  was  and  is  required,  and  without  having  taken  out, 
and  without  having  a  license  therefor,  according  to  the  provisions 
of  the  act  of  the  Congress  of  the  United  States,  entitled  "  An  act 
to  provide  internal  revenue,  and  to  pay  interest  on  the  public  debt," 
and  the  amendments  thereof,  against  the  statute  of  the  United 
States  of  America  in  such  case  made  and  provided,  and  against  the 
peace  of  the  said  United  States  of  America,  and  their  dignity. 
,  U.  S.  attorney,  district  of 

United  States  circuit  court,  district  of 


And  now  comes  the  above-named  defendant  in  open  court,  and 
having  heard  the  said  indictment  read,  saith  that  the  said  The 
United  States  of  America  ought  not  further  to  impeach  or  prosecute 
him,  the  said  defendant,  touching  the  premises  whereof  he  is  by  the 
said  indictment  accused,  because  he  says  that  the  said  indictment, 
and  the  matters  therein  contained,  are  not  sufiicient  in  law  to 
compel  him,  the  said  defendant,  to  answer  the  same ;  and  that  no 
process  upon  the  said  indictment  ought,  by  the  law  of  the  land,  to 
be  issued  against  him,  the  said  defendant ;  and  this  he  is  ready  to 
verify. 

Wherefore  he  prays  judgment  of  the  court  here,  and  that  he  may 
be  dismissed  and  discharged  of  the  said  indictment. 

,  Attorney  for  defendant. 


784  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

United  States  circuit  court,  district  of 


And  ,  district  attorney  of  the  United  States  for  the 

district  of  ,  who  prosecutes  for  the  said  The 

United  States  of  America  in  this  behalf,  saith  that  the  said  indict- 
ment, and  the  matters  therein  contained,  in  manner  and  form,  as 
the  same  are  above  stated  and  set  forth,  are  sufficient  in  law  to 
compel  the  said  to  answer  the  same.     And  the  said  The 

United  States  of  America  is  ready  to  verify,  as  the  court  here  shall 
direct  and  award. 

Wherefore,  inasmuch  as  the  said  hath  not  answered  to 

the  said  indictment,  nor  hitherto  in  any  manner  denied  the  same, 
the  said  The  United  States  of  America  pray  judgment,  and  that 
the  said  may  be  convicted  of  the  premises  in  the  said 

indictment  specified. 

G.  F.,  U.  S.  attorney,  district  of 

United  States  circuit  court,  district  of 


It  is  hereby  stipulated  that  upon  and  under  the  demurrer  of  the 
defendant  interposed  to  the  indictment  in  this  case,  the  defendant 
may  have  the  same  benefit  as  if  he  had  pleaded  specially  the  con- 
stitution and  several  laws  of  the  state  of  on  the  subject  of 
,  and  had  also  pleaded  specially  that  at  the  several  times 
mentioned  in  the  indictment  he  was  a  citizen  of  the  said  state,  and 
exercising  and  carrying  on  his  business  therein. 

G.  F.,  U.  S.  attorney. 

H.  J.,  Defendant's  attorney. 

United  States  circuit  court,  district  of 

Certified  to  the  Supreme  Court  of  the  United  States,  pursuant 
to  the  statute. 

Witness  my  hand  and  official  seal  at  ,  this 

day  of  18 

[l.  s.]  ,  Clerk. 


COMMISSIONERS'  FORMS. 


Form  No.  196. 

Order  for  the  appointment  of  a  commissioner. 

Circuit  court,  district  of 

Present : — The  honorable  ,  judges. 

In  the  matter  of  the  appointment  of  A.  B.  as  United  States 
commissioner. 

It  is  hereby  ordered  that  A.  B.,  of  ,  in  said  district,  be 

and  he  hereby  is  appointed  a  commissioner  of  this  court,  to  take 
aflBdavits  and  acknowledgments  of  bail  in  civil  causes  depending  in 
the  courts  of  the  United  States,  and  to  execute  and  perform  all  the 
duties  and  exercise  all  the  powers  conferred  upon  commissioners 
appointed  by  this  court,  by  the  various  provisions  of  the  statutes  of 
the  United  States  now  or  hereafter  in  force  relating  to  the  same.^ 


Form  No.  197. 

Complaint — common  form. 

United  States  of  America, 


Set 
DISTRICT    OF 


} 


Before  me,  Adam  Burrows,  a  commissioner  of  the  United  States 
in  and  for  said  district,  personally  comes  Edgar  A.  Thomson,  who, 
being  sworn,  on  his  oath  says  that  he  has  good  cause  to  believe  that 
E.  Ford,  late  of  said  district,  on  the  day  of  ,  A.  d. 

18  [here  insert  the  place  where  the  crime  or  offence  was  committed 
and  a  description  of  the  accusation],  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  United  States. 

Edgar  A.  Thomson. 
Subscribed  and  sworn  to  before  me  this  day  of 

Adam  Burrows,  Commissioner  U.  S.  circuit 

court  in  and  for  said  district. 

1  An  official  oath  should  be  taken    commissioner,  and  filed  with  the  clerk 
and  made  in  the  usual  form  by  the     of  the  court. 
50 


786         federal  pleading,  practice  and  procedure. 

Form  No.  198. 

Complaint  for  breaches  of  the  peace. 

United  States  of  America,      ) 

V  set. 
district  of  .     J 

Before  me,  ,  a  commissioner  of  the  circuit  court  in  and 

for  said  district,  personally  comes  George  Payne,  who,  being  duly 
sworn,  upon  his  oath  says  that  he  has  just  cause  to  fear  and  does 
fear  that  E.  Frainey,  of  said  district,  will  [here  state  the  facts  and 
violence  threatened]  contrary  to  the  constitution  and  laws  of  the 
United  States,  and  against  the  peace  and  dignity  thereof. 

George  Payne. 
Sworn  to  and  subscribed  before  me  this  day  of  , 

A.  D.  18     .       ■ 

James  R.  Lane,  Commissioner  U.  S.  circuit 

court  in  and  for  said  district. 


Form  No.  199. 

Warrant  to  apprehend. 

The  President  of  the  United  States  of  America  to  the  marshal  of 

the  United  States  for  the  district  of  ,  and  to 

his  deputies,  or  any  or  either  of  them : 

Whereas  complaint  on  oath  hath  been  made  to  me  charging  that 

did  on  or  about  the  day  of  ,  in  the  year 

one  thousand  eight  hundred  and  eighty-  ,  at  ,  in 

said  district  [here  state  the  offence  complained  of] : 

Now,  therefore,  you  are  hereby  commanded,  in  the  name  of  the 
President  of  the  United  States  of  America,  to  apprehend  the  said 
,  and  bring         bod         forthwith  before  me  to  answer  the  said 
complaint,  and  be  dealt  with  according  to  law  for  the  said  offence. 

Given  under  my  hand  and  seal  this  day  of  ,  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and  eighty- 

[i-s.] 
,  Commissioner  of  the  circuit  court 
of  the  district  of 

Approved,  ,  United  States  attorney. 


coxmmissioners'  forms.  787 

Form  No.  200. 

Return  of  marshal  endorsed  on  back  of  warrant. 

Received  this  warrant  on  the  day  of  ,  18     ,  at 

,  and  executed  the  same  by  arresting  the  within-named 
at  on  the  day  of  ,  18     ,  and 

have  h        bod        now  in  court,  as  within  I  am  commanded. 

,  U.  S.  marshal. 
Per  ,  Deputy.  day  of  ,  188  . 


Form  No.  201. 

Subpoena. 

United  States  of  America, 
district  of 

The  President  of  the  United  States  to  the  U.  S.  marshal  for  the 

district  of  ,   Cfreeting: 

You  are  hereby  commanded  to  summon  ,  if  they 

be  found  in  your  district,  to  be  and  appear  before  me,  ,  a 

commissioner  of  the  United  States  for  the  district  of  ,  at 

my  office  in  ,  state  of  ,  on  the  day  of 

,  A.  D.  18     ,  at  o'clock         M.,  to  testify  in  a  cause 

before  the  said  commissioner  pending,  wherein  the  United  States 

of  America  is  plaintiff,  and  defendant  ,  on  the  part  of 

the  .     Hereof  fail  not  at  your  peril. 

Witness  my  official  signature,  at  •,  this  day  of 

,18     . 
,  United  States  commissioner  for  district  of 


Form  No.  202. 

Return  by  marshal. 

This  subpoena  came  into  my  hands  for  service  on  the 
day  of  ,  A.  D.  18     ,  and  served  the  same  on  each  of  the 

within-named  witnesses,  as  follows : 


788  FEDERAL   PLEADING,    PRACTICE   AND   PROCEDURE. 


On 

,18 

,  at 

On 

,18 

,  at 

On 

,  18 

,  at 

On 

,  18 

,  at 

On 

,  18 

,  at 

bj  reading  the  same  to  ,  and  by  delivering  a  true  copy  to 

,  at  the  times  and  places  above  named. 

,  U.  S.  marshal. 
By  ,  Deputy. 


MARSHAL  S   FEES. 


Mileage,        miles, . 
Service  on 

copy,      . 


Form  No.  203. 

Recognizance  of  prisoner  pending  examination. 

United  States  of  America, 


ss ' 
DISTRICT  OF 


Be  it  remembered  that  on  this  day  of  ,  A.  d. 

18  ,  before  me,  George  Weaver,  a  commissioner  of  the  circuit 
court  of  the  United  States  in  and  for  said  district,  personally 
comes  Edgar  Finley,  as  principal,  and  George  Manahan  and 
Joseph  Woods,  as  sureties,  and  acknowledged  themselves  to  owe 
and  be  indebted  to  thfe  United  States  of  America  as  follows,  that  is 
to  say,  the  said  Edgar  Finley,  in  the  sum  of  dollars,  and 

the  said  George  Manahan  and  Joseph  Woods,  in  the  sum  of 
dollars  each,  to  be  levied  of  their  goods  and  chattels,  lands  and  tene- 
ments, and  to  the  United  States  rendered,  if  default  be  made  in  the 
conditions  following : 

The  conditions  of  this  recognizance  are  such  that  if  the  above- 

bounden  Edgar  Finley  shall  personally  appear    before  the  said 

George  Weaver,  commissioner  as  aforesaid,  on  the  day  of 

,  A.  D.  18     ,  to  answer  the  complaint  against  him  by  one 

James  Stivers,  to  wit  [here  insert  accusation],  and  to  submit  to  and 


commissioners'  forms.      ^  789 

obey  all  orders  of  said  commissioners,  then  this  recognizance  to  be 
void ;  otherwise  to  remain  in  full  force  and  virtue. 

Edgar  Finley.        [l.  s.] 
George  Manahan.  [l.  s.] 
Joseph  Woods.       [l.  s.] 
Signed,  sealed  and  acknowledged  before  me,  this  day  of 

,  A.  D.  18     . 

George  Weaver, 
Commissioner  U.  S.  circuit  court  in  and  for  said  district. 


Form  No.  204. 

Commitment  pending  examination. 


>  ss: 


United  States  of  America, 
district  op 

The  President  of  the  United  States  of  America  to  the  jailer  of  the 
county  of  ,   Grreeting  : 

Whereas  complaint  has  been  made  before  R.  A.  Dean,  a  com- 
missioner of  the  circuit  court  of  the  United  States  in  and  for  said 
district,  upon  the  oath  of  Jacob  Butterby,  that  Charles  Allen,  late 
of  said  district,  did,  on  the  day  of  ,  A.  D.  18       , 

at  [here  insert  the  place  where  the  crime  or  offence  was  committed, 
and  a  description  of  the  accusation],  contrary  to  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity  of  the 
United  States ;  and  the  said  Charles  Allen  having  been  brought  be- 
fore the  said  commissioner,  in  pursuance  of  a  warrant  of  arrest 
issued  upon  said  complaint,  for  examination,  and  said  examination 
having  been  postponed  for  the  reason  that  [here  insert  the  cause  of 
the  delay].  These  are  therefore  to  command  you  to  receive  the 
said  Charles  Allen  into  your  custody,  there  to  remain  until  dis- 
charged by  the  due  course  of  law. 

In  witness  whereof,  I  have  hereunto  set  my  hand  at  my  oflSce  in 
said  district,  this  day  of  ,  A.  D.  18     . 

R.  H.  Dean,  Commissioner  of  U.  S.  circuit 

court  in  and  for  said  district. 


790         federal  pleading,  practice  and  procedure. 

Form  No.  205. 

Recognizance  of  ■witnesses. 

United  States  of  America, 
district  of 

Be  it  remembered  that  on  this  day  of  ,  A.  D. 

18  ,  before  me,  R.  S.  Stein,  a  commissioner  of  the  circuit  court 
of  the  United  States  in  and  for  said  district,  personally  come 
George  McLean,  James  McLean,  Henry  Grey  and  William  Mar- 
shall, and  acknowledge  themselves  to  owe  and  be  indebted  to  the 
United  States  of  America  in  the  full  and  just  sum  of  dol- 

lars, to  be  levied  of  their  goods  and  chattels,  lands  and  tenements, 
and  to  the  said  United  States  rendered,  if  default  be  made  in  the 
conditions  following : 

The  conditions  of  this  recognizance  are  such  that  if  the  above- 
bounden  George  McLean,  James  McLean,  Henry  Grey  and  Wil- 
liam Marshall  shall  personally  appear  before  the  [here  insert 
court,  as  "district"  or  "circuit"]  court  of  the  United  States  for 
the  district  of  ,  on  the  first  day  of  the  next  term 

thereof,  to  be  begun  and  held  at  the  city  of  [here  insert  place  of 
holding  court],  in  said  district,  then  and  there  to  testify  on  behalf 
of  the  United  States,  in  cause  wherein  the  said  United  States  is 
plaintiff  and  Peter  Metcalf  is  defendant,  and  shall  not  at  any  time 
be  absent  or  depart  from  said  court  without  leave,  then  this  recog- 
nizance to  be  void ;  otherwise  to  remain  in  full  force  and  virtue. 

George  McLean.  [l.  s.] 
James  McLean.  [l.  s.] 
Henry  Grey.  [l.  s.] 

William  Marshall,      [l.  s.] 

In  testimony  whereof,  the  said  obligors  have  hereunto  set  their 
hands  and  seals  the  day  and  year  above  written.  Signed,  sealed  and 
acknowledged  before  me,  this  day  of  ,  a.  d.  18     . 

R.  S.  Steen,  Commissioner  of  U.  S.  circuit 

court  in  and  for  said  district. 


commissioners'  forms.  791 

Form  No.  206. 

Recognizance  for  appearance. 

United  States  of  America,     ^ 

DISTRICT  OF  5       V  «s  • 

CITY  OF  .  j 

Be  it  remembered  that  on  this  day  of  ,  A.  D. 

18     ,  before  me,  a  commissioner  duly  appointed  by  the  circuit  court 
of  the  United  States  for  the  said  district  of  ,  per- 

sonally  came  ,  and  jointly  and  severally  acknowledged 

themselves  to  owe  the  United  States  of  America  the  sum  of 
dollars,  to  be  levied  on  their  goods  and  chattels,  lands  and  tenements, 
if  default  be  made  in  the  condition  following,  to  wit : 

The  condition  of  this  recognizance  is  such  that  if  the  said 
shall  personally  appear  before  the  court  of  the  United  States 

in  and  for  the  district  aforesaid,  at  ,  on  the  first  day  of  the 

next  regular  term  thereof,  and  then  and  there  to  answer  the  charge 
of  ,  and  then  and  there  abide  the  judgment  of  the  said 

court,  and  not  depart  without  leave  thereof,  then  this  recognizance 
to  be  void,  otherwise  to  remain  in  full  force  and  virtue. 

.    [L.  S.] 
.    [L.  S.] 

Taken  and  acknowledged  before  me  on  the  day  and  year  first 

above  written. 

,  [L.  s.] 

Commissioner  of  the  circuit  court  of  the 

United  States  for  the  district  of 

United  States  of  America, 

district  of  , 

CITY  OF 

,  of  No.  street,  and  ,  of  No. 

street,  in  the  city  of  ,  in  said  district,  surety  on  the  fore- 

going recognizance,  being  duly  sworn,  deposes  and  says  that 

he  is  a  freeholder  in  the  city  of  ,  that  he  is  worth  the  sum 

of  dollars  over  and  above  all  his  just  debts  and  liabilities 

in  property  subject  to  execution  and  sale,  and  that  his  property 
consists  of 

Sworn  to  this  day  of  ,  A.  D.  18     ,  before  me. 

,  [L.  s.] 
Commissioner  of  the  circuit  court  of  the 
United  States  for  the  district  of 


792         federal  pleading,  practice  and  procedure. 

Form  No.  207. 

Mittimus — common  form. 

The  President  of  the  United  States  to  the  marshal  for  district  of 
,  Greeting  : 
An  order  having  been  this  day  made  by  me  that  be  held 

to  bail  in  the  sum  of  $  to  appear  at  the  first  day  of  the 

term,  A.  D.  18     ,  of  the  district  court  of  the  United  States 
for  the  district  of  ,  upon  a  charge  of  .     He  failing 

to  give  the  required  bail  you  are  hereby  commanded  to  receive  and 
keep  in  your  custody  the  said  and  detain  until  re- 

leased by  due  course  of  law. 

Witness  my  oflficial  signature  at  city  of  ,  this  day  of 

,  18    . 

,  U.  S.  commissioner  for  district  of 


Form  No.  208. 

Affidavit  of  attendance. 

United  States  of  America, 
district  of 

Before  me,  R.  W.  Rhu,  a  commissioner  of  the  circuit  court  of 
the  United  States  in  and  for  said  district,  personally  comes  George 
Hull,  who,  being  duly  sworn  upon  oath,  says  that  he  has  attended 
the  examination  in  the  case  of  the  United  States  against  E.  F. 
Franklin,  charged  with  [here  insert  the  charge]  as  a  witness  for  the 
United  States,  and  that  he  is  entitled  to  fees  for  attendance  and 
mileage  [the  distance  charged  for  being  by  the  usual  route  travelled], 
as  follows :  days  at  $1  50  per  day,  $  ; 

miles  travelled  at  five  cents  per  mile,  $ 

R.  W.  Rhu,  Commissioner  U.  S.  circuit 

court  in  and  for  said  district. 


COMMISSIONERS     FORMS. 


793 


Form  No.  209. 

Order  to  pay  witness  fees. 


United  States  of  America, 
district  of 


y  S8  : 


United  States       "j 

V.  V  Charged  with 

E.  R.  Frainey.      J 

The  several  persons  hereinafter  named  having  attended  the  ex- 
amination in  the  above  cause  as  witnesses  on  the  part  of  the  United 
States,  it  is  hereby  ordered  that  the  marshal  pay  to  them  the  sums 
set  opposite  to  their  respective  names,  for  attendance  the  number  of 
days  and  travel  the  number  of  miles  stated,  to  wit : 


Date. 


Names. 


Days  attendance. 


Miles  travelled, 


Amount  due. 


Adam  Bonbright,  Commissioner  U.  S.  circuit 

court  in  and  for  said  district. 


Form  No.  210. 

Transcript  of  docket. 

Before  ,  commissioner  of  the  circuit  court  of  the  United 

States  for  the  district  of 

United  States  of  America 

V. 


Affidavit  and  complaint  of 
charging  that  on  or  about  the 
at  ,  in  the 

fendant  herein,  did 


,. 

,  Att'y  for  U.  S. 

,  Att'y  for  deft. 

dist 

,of 
day 
rict  of 

of 

,  taken  and  filed, 

,  A.  D.  18      , 

,  said                ,  de- 

794  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

Issued  warrant  for  arrest  of  defendant  to  United  States  marshal. 

Issued  subpoena  for  witnesses  to  United  States  marshal. 

Warrant  returned  served  by  arrest  of  said  defendant  at  , 

in  said  district,  on  the  day  of  ,  18     . 

Subpoena  returned  served  on  at  ,  in  said  district. 

Defendant  present  [here  state  what  further  proceedings  were  had 
in  the  case,  and  set  out  the  evidence  taken]. 

United  States  of  America,      ) 

DISTRICT  OF  .    •    j 

I,  ,  a  commissioner  of  the  circuit  court  of  the  United 

States  in  and  for  said  district,  do  hereby  certify  that  the  foregoing 
writing  is  a  true  transcript  of  the  entries  on  my  docket  in  the  cause 
therein  named,  and  that  copies  of  the  process,  examination  and 
papers  in  said  cause  are  herewith  returned  into  the  court 

of  the  United  States  for  the  district  of  ,  in  pursu- 

ance of  law. 

In  witness  whereof  I  hereunto  set  my  hand,  at  my  oflfice  in 
in  said  district,  this  day  of  ,  18     . 

,  Commissioner  of  the  circuit  court  of  the 
United  States  for  the  district  of 


Form  No.  211. 

Affidavit  and  order  for  examination  (de  bene  esse)  for  the  plaintiff. 

Circuit  court  of  the  United  States  for  the  circuit  and  district  of 
,  or  district  court  of  the  United  States  in  and 

for  the  district  of 
United  States  circuit  court,  district  of  .    . 

A.  B.      ^ 

C.  D.      J 

,  being  sworn,  says  that  he  is  the  plaintiff  in  the  above- 
entitled  cause ;  that  he  is  advised  by  his  counsel  and  verily  believes 
that  the  testimony  of  ,  at  present  of  ,  mariner  [or 

as  the  fact  may  be],  is  material  and  necessary  for  this  deponent  in 


commissioners'  forms.  795 

the  prosecution  of  such  cause ;  that  the  said  lives  at  , 

more  than  one  hundred  miles  from  ,  where  the  court,  at 

which  this  deponent  expects  the  said  cause  will  be  tried,  is  to  be 
held  [or,  is  bound  on  a  voyage  to  sea ;  or,  is  about  to  go  out  of  the 
district  in  which  the  said  cause  is  pending,  and  to  a  greater  distance 
than  one  hundred  miles,  as  the  deponent  is  informed  and  verily 
believes  ;  or,  is  so  aged  or  so  infirm  as  to  render  it  probable  that  he 
will  not  be  able  to  attend  as  a  witness  at  the  trial  of  such  cause]. 

And  this  deponent  further  says  that,  as  he  is  informed  and 
believes,  ,  the  above-named  defendant,  resides  at  , 

about  miles  distant  from  the  place  where  the  examination 

of  the  said  witness  is  expected  to  be  taken ;  and  that,  as  he  is  also 
informed  and  believes,  ,  the  attorney  of  the  said  , 

resides  at  ,  about  miles  from  as  aforesaid.^ 


Form  No.  212. 

Notice  of  examination  (de  bene  esse). 

Circuit  (or  district)  court,  etc. 
United  States  circuit  court,  district  of 

A.  B. 

V. 

CD. 

Sir,  you  are  hereby  notified  that  will  be  examined  (de 

bene  esse)  before  me,  at  ,  on  the  day  of  , 

at  o'clock  in  the  noon,  as  a  witness  for  the  above 

plaintiff,  according  to  the  statutes  in  such  case  made  and  provided, 
at  which  time  and  place  you  are  entitled  by  law  to  be  present,  and 
to  put  interrogatories  to  the  said  witness. 

Dated,  etc. 

,  U.  S.  commissioner. 

To  C.  D.,  the  above-named  defendant 
[or  E.  F.,  attorney  for  the  above-named  defendant]. 

'  Upon  such  application  the  court    will  make  an  order  for  the  examina- 
tion as  requested. 


796         federal  pleading,  practice  and  procedure. 

Form  No.  213. 

Subpoena. 
United  States  circuit  court,  district  of 

A.  B.         ^ 

V.  \  To 

C.  D.  I 

Take  notice,  that  you  are  required  to  be  examined  de  bene  esse 
on  the  part  of  the  ,  in  the  above-entitled  cause, 

before  me  ,  a  commissioner  duly  appointed  by  the  circuit  court 

of  the  United  States  for  the  district  of  ,  under  and 

by  virtue  of  the  statutes  of  the  United  States  in  such  case  made  and 
provided,  at  my  office,  ,  in  the  city  of  ,  on  the  day 

of  ,  at  o'clock  in  the  noon  of  that  day,  at 

which  time  and  place  you  are  hereby  required  to  be  present  and 
tertify. 

Witness  my  hand  and  official  seal,  at  ,  this  day 

of  ,  18     . 

,  United  States  commissioner. 


Form  No.  214. 

Caption  for  depositions  to  be  taken  de  bene  esse. 

United  States  of  America, 

district  of  , 

State  of  ,  county  of 

Be  it  remembered,  that  on  this  day  of  ,  in  the 

year   of  our  Lord  one  thousand  eight  hundred  and  ,  I, 

,  a  commissioner  duly  appointed  by  the  circuit  court  of 
the  United  States  for  the  district  of  ,  in  the 

circuit,  under  and  by  virtue  of  the  statutes  of  the  United  States 
in  such  case  made  and  provided,  did  call  and  cause  to  be  and  per- 
sonally appear  before  me  at  my  office,  in  the 
district  of  ,  in  the  state  aforesaid,  to  testify,  and 
the  truth  to  say,  on  the  part  and  behalf  of  the  in  a  certain 
suit  or  matter  of  controversy,  now  depending  and  undetermined 
in  the  court  of  the  United  States  for  the  district 
of                ,  wherein 


commissioners'  forms.  797 

And  the  said  ,  being  about  the  age  of  years,  and 

having  been  by  me  first  cautioned  and  sworn  to  testify  the  truth, 
the  whole  truth,  and  nothing  but  the  truth,  in  the  matter  of  con- 
troversy aforesaid,  I  did  carefully  examine  the  said  ,  and 
he  did  thereupon  depose,  testify  and  say  as  follows,  viz. : 


Form  No.  215. 

Certificate  for  depositions  de  bene  esse. 

United  States  of  America, 

district  op  , 

State  of  ,  county  of 

I,  ,  a  commissioner  duly  appointed  by  the  circuit 

court  of  the  United  States  for  the  district  of  , 

in  the  second  circuit,  under  and  by  virtue  of  the  statutes  of  the 
United  States  in  such  case  made  and  provided,  do  hereby  certify 
that  the  reason  for  taking  the  foregoing  deposition  is,  and  the  fact 
is,  that  the  witness  [here  state  the  case  for  taking  under  the  statute]. 

I  further  certify,  that  a  notification  of  the  time  and  place  of 
taking  the  said  deposition  signed  by  me  was  made  out  and  served 
on  the  5  to  be  present  at  the  taking  of  the  deposition, 

and  to  put  interrogatories,  if  he  or  they  might  think  fit  so  to  do. 

I  further  certify,  that  on  the  day  of  ,  A.  d. 

18     ,  I  was  attended  by  ,  and  by  the  witness,  who 

of  sound  mind  and  lawful  age,  and  the  witness  ,  by  me 

first  carefully  examined  and  cautioned,  and  sworn  to  testify  the  " 
whole  truth,  and  the  deposition  by  me  reduced  to  writing 

in  the  presence  of  the  witness     and  from  statement,  and  after 

carefully  reading  the  same  to  the  witness  ,  subscribed  the 

same  in  my  presence.  I  have  retained  the  said  deposition  in  my 
possession  for  the  purpose  of  ,  the  same  with  my  own  hand 

to  the  court  for  which  the  same  taken. 

And  I  do  further  certify,  that  I  am  not  of  counsel  nor  attorney 
for  either  of  the  parties  in  the  said  deposition  and  caption  named, 
nor  in  any  way  interested  in  the  event  of  the  cause  named  in  the 
said  caption. 


798     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE, 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  seal,  this 
day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  ,  and  of  the  independence  of  the  United 

States  the 

,  U.  S.  commissioner,  circuit  court  of  the  United  States 
for  the  district  of  ,  in  the  circuit. 


Form  No.  216. 

Commission  to  take  depositions  in  other  cases. 

The  President  of  the  United  States  of  America  to  , 

Greeting : 

Know  ye,  that  we,  in  confidence  of  your  prudence  and  fidelity, 
have  appointed  you  commissioner     ,  and  by  these  presents 

do  give  you  full  power  and  authority  diligently  to  ex- 

amine upon  corporal  oath     or  affirmation     ,  before  you 

to  be  taken,  and  upon  the  interrogatories  hereunto  an- 

nexed, as  witness       on  the  part  of  the 

in  a  certain  cause  now  pending  undetermined  in  the  circuit  court  of 
the  United  States  of  America  for  the  district  of  , 

second  circuit,  wherein 

And  we  do  further  empower  you,  to  examine  on  the 

same  behalf,  and  in  like  manner,  any  other  person  or  persons  who 
may  be  produced  as  witness  before  you ;  and  we  do  hereby 
require  you,  before  whom  such  testimony  may  be  taken, 

to  reduce  the  same  to  writing,  and  to  close  it  up  under  your  hand 
and  seal    directed  to  ,  as  soon  as  may  be  convenient  after 

the  execution  of  this  commission ;  and  that  you  return  the  same, 
when  executed  as  above  directed,  with  the  title  of  the  cause  endorsed 
on  the  envelope  of  the  commission. 

Witness  the  honorable  ,  Chief  Justice  of  the  Supreme 

Court  of  the  United  States,  at  the  city  of  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred and  ,  and  of  our  independence  the 

,  Clerk. 
,  Attorney. 


commissioners'  forms.  799 

Form  No.  217. 

Writ  of  habeas  corpus  ad  testificandum. 

The  President  of  the  United  States  of  America  to  the  marshal  of 
[or  as  the  case  may  be],  Q-reeting : 

You  are  hereby  commanded  that  you  have  the  body  of  , 

now  in  prison  [or  as  the  case  may  be],  under  your  custody,  as  it  is 
said,  under  safe  and  secure  conduct,  before,  etc.  [as  in  the  subpoena], 
to  testify  the  truth,  according  to  his  knowledge,  in  a  certain  case 
now  depending,  etc.  [as  in  the  subpoena],  and  immediately  after  the 
said  shall  then  and  there  have  given  his  testimony,  that 

you  return  him  to  the  said  prison  [or  as  the  case  may  be],  under 
safe  and  secure  conduct,  and  have  there  then  this  writ. 

Witness,  etc.  [as  in  the  capias]. 


Form  No.  218. 

Commission  of  dedimus  potestatem. 

The  President  of  the  United    States  of  America  to  , 

Greeting  : 

Know  ye,  that  in  confidence  of  your  prudence  and  fidelity,  you 

have  been  appointed,  and  by  these  presents  you,  or  any  two  or  more 

of  you,  are  invested  with  full  power  and  authority  to  examine 

on  his  corporal  oath,  as  a  witness  in  a  case  depending  in 
the  circuit  court  of  the  United  States  for  the  circuit  and 

district  of  (or,  in  the  district  court  of  the  United  States  in 

and  for  the  district  of  ),  wherein  is  plaintifi"  and 

defendant,  on  the  part  of  the  ,  upon  the  inter- 

rogatories annexed  to  this  commission ;  and,  therefore,  you  are 
hereby  commanded,  that  you,  or  any  two  or  more  of  you,  at  cer- 
tain days  and  places  to  be  appointed  by  you  for  that  purpose,  do 
cause  the  said  to  come  before  you,  and  then  and  there 

examine  him  on  oath  upon  the  said  interrogatories,  and  that  you 
take  such  examination  and  reduce  the  same  into  writing,  and 
return  the  same  annexed  to  this  writ,  closed  up  under  your  seals, 
or  the  seals  of  any  two  or  more  of  you,  into  the  said  circuit  (or 


800  FEDERAL   PLEADING,    PRACTICE   AND   PROCEDURE. 

district)  court,  before  the  judges  (or  judge)  thereof,  with  all  con- 
venient speed. 

Witness,  etc.  (as  above). 

[The  interrogatories  and  cross-interrogatories  (if  any)  to  be  an- 
nexed to  the  commission,  and  the  depositions,  are  to  be  drawn  up  in 
the  usual  form.] 


SUPREME  COURT  FORMS. 


Form  No.  220. 

Motion  for  leave  to  file  a  bill  in  the  Supreme  Court. 
In  the  Supreme  Court  of  the  United  States. 
.J.  T.,  complainant,      ^ 

( 
D.  C,  defendant.  J 

Now  comes  the  complainant  in  the  above-entitled  cause  by  A.  B,, 
his  solicitor,  and  moves  the  court  for  leave  to  file  a  bill  of  com- 
plaint and  discovery  therein,  against  the  said  defendant. 

A.  B.,  Solicitor  for  the  complainant. 


Form  No.  221. 

Bill  for  the  settlement  of  a  boundary  between  states. 

[Title  of  cause  as  in  Form  No.  1.] 

To  the  judges  of  the  Supreme  Court  of  the  United  States. 

The  state  of  Rhode  Island,  one  of  the  United  States  of  America,, 
brings  this  bill  against  the  state  of  Massachusetts,  also  one  of  the 
United  States  of  America. 

And  thereupon  your  orator  complains  and  says  that  on  the  3d 
d;iy  of  November,  1621,  King  James  the  First  granted  a  charter  to 
the  council  of  Plymouth,  for  planting,  ruling,  ordering  and  govern- 
ing New  England,  in  America,  in  which  were  described  the  bounda- 
ries of  the  territory  so  granted,  as  follows:  [Here  describe  the 
boundaries.] 

That  afterwards,  to  wit,  on  the  4th  of  March,  1629,  King 
Charles  the  First  incorporated  by  letters  patent  "The  Governor 
and  Company  of  Massachusetts  Bay,  in  New  England,"  and  the 
council  at  Plymouth  conveyed  to  them  by  deed  the  lands  above 
described. 

Copies  of  said  charters  and  deed  are  hereto  annexed,  marked 
51 


802     FEDERAL  PLEADING,  PRACTICE  AND  PROCEDURE. 

A,  B,  C,  respectively,  and  your  orator  prays  that  they  may  be 
made  a  part  hereof,  as  your  orator  will  be  prepared  and  prove  the 
same. 

Your  orator  further  states  that  afterwards,  on  the  8th  day  of 
July,  1763,  King  Charles  the  Second,  by  letters  patent,  granted 
a  charter  of  incorporation  to  William  Brenton,  John  Coddington 
and  others,  by  the  name  of  "The  Governor  and  Company  of  the 
English  Colony  of  Rhode  Island  and  Providence  Plantations,  in 
New  England,  in  America;"  and  granted  and  conferred  to  the 
corporation,  by  letters  patent,  all  that  part  of  New  England,  in 
America,  containing,  etc.,  bounded  on  the  north  or  northerly  by 
the  aforesaid  south  or  southerly  line  of  Massachusetts  colony  or 
plantation,  etc. 

Your  orator  further  states  that  the  province  and  colony  of 
Massachusetts  Bay,  and  of  Rhode  Island  and  Providence  Plan- 
tations, thus  established,  continued  under  the  charters  and  letters 
patent  aforesaid,  with  the  boundary  line  between  them  as  aforesaid, 
unchanged  until  the  4th  day  of  July,  1776,  when  with  their  sister 
colonies  they  became  independent  states  of  the  Union. 

Your  orator  further  states  that  the  true  boundary  line  between 
the  state  of  Rhode  Island  and  Providence  Plantations,  and  the 
commonwealth  of  Massachusetts,  by  virtue  of  the  charters  afore- 
said from  the  English  Crown,  is  a  line  run  east  and  west  three 
miles  south  of  Charles  river,  or  any  or  every  part  thereof. 

Your  orator  further  states  that  the  commonwealth  of  Massachu- 
setts holds  possession  to  a  line  eight  miles  south  of  the  Charles 
river,  or  any  part  thereof,  and  one  that  does  not  run  east  and  west, 
but  south  of  a  west  and  north  of  a  northeast  course ;  that  the 
territory  between  this  line  and  the  one  above  described  belongs  to 
the  state  of  Rhode  Island ;  and  that  the  defendant  unjustly  with- 
holds the  possession  thereof  from  her  and  exercises  acts  of  sover- 
eignty over  it. 

Your  orator  further  states  that  in  consequence  of  various  dis- 
putes and  controversies  about  the  boundary  between  the  two  colo- 
nies, and  subsequently  between  said  states,  numerous  efforts  were 
made  to  adjust  the  same;  that  about  the  year  commissioners 

were  appointed  by  the  legislatures  of  said  colonies  respectively  for 
the  purpose  of  ascertaining  and  settling  said  boundary,  but  they 
were  never  able  to  agree  upon  or  settle  the  same. 


SUPREME  COURT  FORMS.  803 

Your  orator  further  states  that  the  defendant  herein  claims  that 
the  boundary  line  was  settled  and  adjusted  by  said  commissioners 
acting  for  the  two  colonies  and  under  the  authority  of  the  colonies 
respectively,  and  that  this  settlement  has  been  acquiesced  in  by  the 
plaintiff.  But  your  orator  states  that  there  were  errors  in  the  pro- 
ceedings of  said  commissioners ;  that  they  were  misinformed  and 
mistaken  as  to  a  monument  alleged  to  have  been  set  up,  long  an- 
terior to  the  appointment  of  said  commissioners,  by  Nathaniel 
Woodward  and  Solomon  Caffrey,  and  which  they  fixed  upon  and 
assumed  to  be  on  the  boundary  line  three  miles  south  of  any  part 
of  Charles  river,  without  any  actual  survey  or  measurements,  etc. ; 
that  the  line  thus  fixed  upon  was  in  fact  eight  miles  south  of  any 
part  of  Charles  river,  and  has  always  been  objected  to  and  resisted 
by  the  complainant,  and  never  acquiesced  in  as  the  true  boundary 
line  between  said  states  ;  that  the  agreement  of  the  commissioners 
was  not  accepted  or  ratified  by  the  complainant ;  that  no  stake  or 
monument  existed  on  said  line  as  assumed  by  said  commissioners ; 
and  that  she  never  admitted  any  line  as  the  true  boundary,  except 
the  one  called  for  by  the  charters  aforesaid. 

Wherefore  the  complainant  prays  that  the  said  defendant  may  be 
required  to  answer  the  matters  set  forth  in  this  her  bill ;  that  the 
northern  boundary  line  between  the  complainant  and  the  state  of 
Massachusetts  may,  by  the  order  and  decree  of  this  honorable 
court,  be  ascertained  and  established ;  that  possession  and  rights  of 
jurisdiction  and  sovereignty  to  the  whole  tract  of  land,  with  the  ap- 
purtenances mentioned,  descyfibed  and  granted  in  and  by  the  said 
charter  or  letters  patent  to  the  said  colony  of  Rhode  Island  and 
Providence  Plantations,  hereinbefore  set  forth,  and  running  on  the 
north,  by  an  east  and  west  line  drawn  three  miles  south  of  the 
waters  of  said  Charles  river  or  of  any  and  every  part  thereof,  may 
be  restored  and  confirmed  to  the  complainants ;  that  the  complain- 
ants may  be  quieted  in  the  full  and  free  enjoyment  of  her  posses- 
sion, jurisdiction  and  sovereignty  over  the  same,  and  the  title,  pos- 
session, jurisdiction  and  sovereignty  of  Rhode  Island  and  Providence 
Plantations,  over  the  same,  be  confirmed  and  established  by  the 
decree  of  this  court;  and  that  the  complainants  may  have  such 
other  and  further  relief  in  the  premises  as  to  the  court  shall  seem 
meet  and  consistent  with  equity  and  good  conscience. 

May  it  please  your  honors  to  grant  unto  your  orator  a  writ  of 


804  FEDERAL   PLEADING,    PRACTICE   AND   PROCEDURE. 

subpoena  under  tbe  seal  of.  this  honorable  court,  directed  to  the 
governor  and  attorney-general  of  the  state  of  Massachusetts,  com- 
manding them,  on  a  day  certain  to  be  named  and  under  a  certain 
penalty,  to  be  and  appear  in  this  honorable  court,  then  and  there 
to  answer,  on  behalf  of  said  state,  all  and  singular  the  premises, 
and  on  behalf  of  said  state  stand  to  perform  and  abide  such 
further  order,  direction  and  decree  as  may  be  made  against  said 
state. 

And  your  orator  will  ever  pray,  etc. 

A.  B.,  Solicitor  for  complainant. 

C.  D.,  Of  counsel. 


Form  No.  222. 

Subpcena  in  a  suit  by  one  state   against  another. 

The  President  of  the  United  States  to  the  governor  and  attorney- 
general  of  the  state  of  ,  G-reeting : 

For  certain  causes  offered  before  the  Supreme  Court  of  the  United 
States  holding  jurisdiction  in  equity,  you  are  hereby  commanded 
and  strictly  enjoined  that,  laying  all  matters  aside  and  notwith- 
standing any  excuse,  you  personally  be  and  appear  on  behalf  of  the 
people  of  said  state  of  ,  before  the  said   Supreme  Court 

holding  jurisdiction  in  equity,  on  the  first  Monday  in  next, 

at  the  city  of  Washington  in  the  District  of  Columbia,  being  the 
present  seat  of  the  national  government  of  the  United  States,  to 
answer  concerning  things  which  shall  there  and  then  be  objected 
to  said  state,  and  to  do  further,  and  receive  on  behalf  of  said  state, 
what  the  said  Supreme  Court  holding  jurisdiction  in  equity  shall 
have  considered  in  this  behalf;  and  this  you  may  in  no  wise  omit, 
under  the  penalty  of  five  hundred  dollars. 

Witness   the  honorable  ,  Chief  Justice  of  the  said 

Supreme  Court,  at  Washington  city,  this  day  of  , 

18     . 

Signed  by  the  clerk  of  the  Supreme  Court.^ 

^  This  form  was  prepared  by  the     court  in  the  case  of  New  Jersey  v. 

New  York,  4  Pet.  467. 


supreme  court  forms.  805 

Form  No.  223. 

Return  of  service  of  subpoena  on  a  state. 

The  within  subpoena  was  served  on  J.  K.,  governor  of  the  state 
of  Massachusetts,    at  on   the  day   of  , 

18     ,^  by  delivering  to  and  leaving  with  him  a  copy  thereof,  and  at 
the  same  time  showing  him  the  original  with  the  seal  of  the  court 
attached ;  also  on  L.  M.,  attorney-general  of  said  state,  at 
on  the  day  of  ,  18     ,  by  delivering  to  him  a  copy 

thereof,  and  at  the  same  time  showing  him  this  original  with  the 
seal  of  the  court  attached. 

Dated  ,  188  .  N.  0.,  U.  S.  marshal. 

Form  No.  224. 

Precipe  for  appearance  by  a  solicitor. 
In  the  Supreme  Court  of  the  United  States. 
The  State  of  Rhode  Island,  complainant, 

V. 

The  State  of  Massachusetts,  defendant. 
The  clerk   of   this   court  will  please  enter  my  appearance   as 
solicitor  for  the  defendant  in  the  above-entitled  cause. 
Dated  ,  18     .  Yours,  etc., 

S.  T.,  Solicitor  for  the  defendant.^ 


Form  No.  225. 

Demurrer  for  >vant  of  jurisdiction. 

In  the  Supreme  Court  of  the  United  States. 
The  State  of  Rhode  Island,  complainant, 

V. 

The  State  of  Massachusetts,  defendant. 

Now  comes  the  defendant  in  this  cause  and  demurs  to  the  bill 
filed  herein,  and  asks  that  the  same  be  dismissed,  for  the  following 
reasons : 

^  la  case  of  service   by  copy  here  one;  as  to  object  to  the  jurisdiction 

insert :  "  by  leaving  a  copy  thereof  at  of  the  court :  Rubber  Co.  v.  Goodyear, 

the  dwelling  house  [or  usual  place  of  9  Wall,  807.     And  it  has  been  held 

abode]  of  the  said  ,  with  ,  that  the  filing  of  a  demurrer  to  a  bill 

an  adult  person,  who  is  a  member  of  was  sufficient  appearance,  without  a 

[or   resident  in]    his   family."      See  formal   entry  of  it :    New  Jersey  v. 

Equity  Rule  13.  New  York,  6  Pet.  323. 

^  The  appearance  may  be  a  special 


806  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

1.  It  does  not  appear  from  the  bill  that  the  parties  before  the 
court  are  such  as  to  give  the  court  jurisdiction  of  the  same. 

2.  It  does  not  appear  from  the  bill  that  the  matter  in  question 
or  controversy  is  of  such  a  judicial  nature  as  to  authorize  the  court 
to  take  cognizance  of  it. 

3.  It  appears  from  the  bill  that  the  controversy  relates  solely  to 

the  jurisdiction  and  sovereignty  of  the  state  in  its  political  capacity, 

and  presents  no  question  of  private  rights  of  persons  or  property 

for  judicial  determination. 

A.  B.,  Solicitor  for  defendant. 


Form  No.  226. 

Certificate  to  a  demurrer. 
I  hereby  certify  that  in  my  opinion  the  foregoing  [or  within  or 
above]  demurrer  is  well  founded  in  point  of  law. 

A.  B.,  Solicitor  and  of  counsel  for  defendant. 


-  Form  No.  227. 

Affidavit  to  demurrer  in  Supreme  Court. 

United  States  of  America, 

Supreme  Court. 

I,  C.  D.,  being  duly  sworn,  depose  and  say  that  I  have  read  the 

foregoing  demurrer  to  the  bill  of  complaint  in  said  suit  in  which  I 

am  defendant  [or  one  of  the  defendants],  and  that  said  demurrer 

is  not  interposed  for  the  purpose  of  delaying  said  suit. 

CD. 

Subscribed  and  sworn  to  before  me  this  day  of  ,  18     . 

E.  F.,  Clerk  of  said  court. 


Form  No.  228. 

Motion  to  dismiss  for  want  of  jurisdiction. 
In  the  Supreme  Court  of  the  United  States. 
The  State  of  Rhode  Island,  complainant,    "| 

( 
The  State  of  Massachusetts,  defendant.      J 

Now  comes  the  defendant  and  moves  the  court  to  dismiss  the 

bill  herein  for  want  of  jurisdiction,  as  apparent  from  the  bill: 


SUPREME  COURT  FORMS.  807 

1st.  Because  it  therein  appears  that  the  claim  relates  to  an  anti- 
quated controversy  between  colonies,  previous  to  the  formation  of 
the  government. 

2d.  Because  there  is  no  legislative  provision  or  law  in  force  to 
direct  or  regulate  the  process,  forms  of  proceeding,  judgment  or 
execution,  or  to  authorize  any  action  by  the   court  in  the  premises. 

3d.  Because  the  nature  of  the  suit  is  political  in  its  character, 
brought  by  a  sovereign  for  the  restitution  of  sovereignty  of  disputed 
territory. 

A.  B.,  Solicitor  for  defendant. 


Form  No.  229. 

Bill  by  one  state   against  another  to  settle  the  boundary ;    another 

form. 

To  the  Supreme  Court  of  the  United  States : 

The  state  of  Missouri,  by  Robert  A.  Hatcher,  her  agent  and 
attorney,  duly  appointed  and  commissioned  in  pursuance  of  law, 
states  that  a  controversy  has  arisen  between  said  state  and  the 
state  of  Kentucky  respecting  the  boundaries  of  said  states,  and  the 
said  state  of  Missouri  complains  that  said  state  of  Kentucky,  since 
the  first  of  January,  a.  d.  one  thousand  eight  hundred  and  fifty- 
seven,  has  unlawfully  claimed  and  exercised  jurisdiction  over  Wolf 
island,  an  island  in  the  Mississippi  river,  forming  part  of  the  ter- 
ritory of  said  state  of  ^lissouri ;  that  said  states  are  severally 
bounded  at  the  point  in  question  by  the  main  channel  of  said  river, 
and  the  said  island  was  at  the  time  said  boundaries  were  fixed,  and 
still  is,  on  the  western  or  Missouri  side  of  said  channel. 

Wherefore  complainant  prays  that  said  state  of  Kentucky  may 
be  made  a  defendant  to  this  bill,  and  permitted  to  answer  the 
same ;  that  upon  a  final  hearing  of  the  cause,  the  boundary  herein 
claimed  may  be  ascertained  and  established  by  the  decree  of  this 
court,  and  that  the  rights  of  possession,  jurisdiction  and  sovereignty 
of  said  state  of  Missouri  thereto  be  quieted,  and  the  defendant  for- 
ever enjoined  and  restrained  from  disturbing  said  complainant,  her 
officers  or  people  in  the  full  possession  and  enjoyment  of  the  same; 
and  the  complainant  prays  such  other  and  further  relief  as  the 
nature  of  the  case  requires  and  to  equity  belongs ;  and  com- 
plainant will  ever  pray,  etc. 

R.  A.  Hatcher,  Agent  and  solicitor  for  complainant. 


808         federal  pleading,  pkactice  and  procedure. 

Form  No.  230. 

Bill  to  restrain  the  use  of  a  trade  mark. 

[Caption  and  title  of  canse  as  in  Form  No.  1.] 

To  the  judges  of  the  Supreme  Court  of  the  United  States: 

P.  F.,  resident  of  the  city  of  New  York,  but  an  alien  and  a 
consul  of  her  Britannic  Majesty  for  the  city  of  New  York,  duly 
appointed  and  accredited  by  the  government  of  Great  Britain,  and 
duly  recognized  as  such  by  the  government  of  the  United  States  of 
America,  brings  this  bill  against  D.  C,  of  F.,  in  the  state  of  Massa- 
chusetts, and  a  citizen  of  that  state. 

And  thereupon  your  orator  complains  and  says  that  for  many 
years  past  in  manufacturing  cotton  thread  at  Leicester,  in  that  part 
of  the  United  Kingdom  of  Great  Britain  and  Ireland  called  En^- 
land,  and  vending  the  same  in  large  quantities  not  only  in  England 
but  throughout  the  United  States,  and  particularly  in  the  city  of 
B.,  in  said  state.  That  their  said  thread  is,  and  for  many  years 
has  been,  put  up  for  sale  on  spools,  and  labelled  on  the  top  of  the 
spools  "Taylor's  Persian  Thread,"  in  a  circle,  in  the  centre  of 
which  is  the  number  of  the  thread,  and  on  the  bottom  of  some  of 
the  spools,  "J.  Taylor,  Leicester,"  and  on  the  bottom  of  others, 
"J.  Taylor,"  with  the  number  of  yards  of  thread  on  each  spool; 
each  spool  usually  containing  two  hundred  yards  or  three  hundred 
yards  of  thread,  and  the  spools  containing  two  hundred  yards  being 
black,  and  labelled  "  200  yards,"  on  the  bottom  of  the  spools,  and 
those  containing  three  hundred  yards  being  red,  and  labelled  "  300 
yards,"  on  the  bottom  of  the  spools.  And  on  the  centre  of  some 
of  the  same  labels  on  the  bottom  of  each  spool  is  stamped  the 
symbol  or  print  of  the  head  and  forepart  of  a  lion  rampant ;  and 
on  the  centre  of  other  of  said  labels  is  stamped  a  coat-of-arms,  the 
shield  whereon  contains  a  lion  rampant,  and  over  the  same  three 
balls,  with  the  motto,  "Jw  Deo  confido.''  And  your  orators  further 
say  that  their  spools  so  marked,  stamped,  colored  or  labelled  as 
aforesaid  are  put  up  for  sale  in  paper  envelopes,  each  containing 
one  dozen  spools ;  which  envelopes  are  prepared  and  stamped  by 
your  orator  for  said  purpose,  and  some  of  said  envelopes  bear  in 
raised  letters  stamped  on  them  the  inscription,  "  The  Persian  Thread 
made  by  J.  Taylor  is  labelled  on  the  top  of  each  spool  Taylor's 


SUPREME  COURT  FORMS.  809 

Persian  Thread,  and  on  the  bottom,  J.  Taylor,  Leicester.  The 
above  is  for  the  protection  of  buyers  against  certain  piratical  arti- 
cles of  inferior  quality,  fraudulently  labelled  with  the  name  of 
Taylor."  And  on  other  of  said  envelopes  is  stamped  a  coat-of- 
arms  representing  a  shield,  the  upper  division  of  which  is  gilt, 
and  contains  three  balls,  and  the  lower  division  thereof  is  red, 
and  contains  the  effigy  of  a  lion  rampant,  with  the  motto  under 
the  same,  "ir?.  Deo  eonfido.'^  Your  orators  further  show  unto 
your  honors  that  their  said  thread  has  been  and  is  manufac- 
tured of  various  sizes  and  numbers,  to  meet  the  wants  of  the  trade ; 
and  by  means  of  the  care,  skill  and  fidelity  with  which  your 
orators  have  conducted  the  manufacture  thereof  for  a  series  of. 
years,  their  said  thread  has  acquired  a  great  reputation  in  the 
trade  throughout  the  United  States,  and  large  quantities  of  the 
same  are  constantly  required  from  your  orators  to  supply  the 
regular  demand  for  the  consumption  of  the  country.  And  your 
orators  have  established  agencies  for  the  sale  thereof  to  the  whole- 
sale dealers  and  jobbers  in  the  cities  of  B.,  N.  Y.,  P.  and  N.  0., 
and  in  addition  thereto  your  orators  employ  B.  W.,  now  residing 
in  said  city  of  N.  Y.,  as  their  general  agent  for  the  United  States, 
in  relation  to  the  sale  of  the  said  spool  sewing  cotton  thread ;  and 
a  mercantile  firm  of  H.  &  C.  are  the  agents  of  your  orators  for  the 
sale  of  the  same  in  the  city  of  B.  And  your  orators  further  show 
unto  your  honors  that  their  said  thread  is  known  and  distinguished 
by  the  trade  and  the  public  as  "Taylor's  Persian  Thread,"  and 
that  your  orators  were  the  original  manufacturers  thereof,  and  the 
first  who  introduced  the  same  to  the  public.  That  your  orators' 
said  general  agent,  on  or  about  the  first  day  of  March  last  past, 
hearing  that  complaints  were  made  of  the  quality  of  "  Taylor's 
Persian  Thread,"  proceeded  to  investigate  the  cause  of  said  com- 
plaint, and  thereupon  ascertained  that  a  spurious  article  of  spool 
sewing  cotton  thread  was  offered  for  sale  by  sundry  jobbers  in  the 
said  city  of  B.,  as  and  for  your  orators'  "Persian  Thread,"  and 
that  such  complaints  had  arisen  from  the  fraudulent  imposition  of 
such  spurious  article  upon  the  public.  Your  orators  further  show 
unto  your  honors  that  their  said  agent  further  ascertained,  upon 
inquiry,  and  your  brators  charge  the  facts  to  be,  that  the  said 
spurious  thread  so  sold  and  offered  for  sale  in  the  said  city  of  B., 
or  some  of  it,  was  furnished  to  said  jobbers  by  said  D.  C,  either  by 


810  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

him  personally  or  bj  one  F.  D.  E.,  of  B.,  his  agent  in  that  behalf, 
and  your  orators  are  informed  and  believe  that  the  said  D.  C.  has 
sold  the  said  thread,  put  up,  marked  and  designated  as  aforesaid, 
in  the  said  city  of  B. ;  that  the  said  D.  C,  disregarding  the  rights 
of  your  orators,  and  fraudulently  designing  to  procure  the  custom 
and  trade  of  persons  who  are  in  the  habit  of  vending  or  using  your 
orators'  said  "  Persian  Thread,"  and  to  induce  them  and  the  public 
to  believe  that  his  said  thread  was  in  fact  manufactured  by  your 
orators,  has  engaged  extensively  in  the  manufacture  of  sewing 
cotton  thread,  and  caused  the  same  to  be  put  up  for  sale  in  enve- 
lopes and  on  spools  similar  to  those  used  by  your  orators,  and  so 
colored  and  stamped  and  labelled  as  to  resemble  exactly  the  said 
spools  and  envelopes  used  by  your  orators.  And  the  said  spool 
sewing  cotton  thread  prepared  by  the  said  D.  C.  and  sold  by  him, 
and  which  he  is  engaged  in  selling  as  aforesaid,  is  an  exact  imita- 
tion of  the  same  article  which  your  orators  had  been  manufacturing 
as  aforesaid,  and  selling  in  the  United  States  for  many  years  before 
the  said  D.  C.  commenced  his  said  fraudulent  imitation  thereof. 
And  the  said  spurious  article,  although  inferior  in  quality  to  the 
genuine  Persian  Thread  manufactured  by  your  orators,  can  only 
be  distinguished  therefrom,  so  exact  is  the  said  D.  C.'s  imitation 
as  aforesaid,  by  a  careful  examination  of  its  quality  and  by  a  falling 
short  in  the  number  of  yards  contained  on  each  spool  from  the 
number  marked  thereon  as  the  contents  thereof.  And  that  the 
general  appearance  of  the  spurious  article  is  the  same  as  that  of 
your  orators'  genuine  thread,  and  well  calculated  to  deceive  those 
dealing  in  the  purchase  and  sale  thereof.  Your  orators  further 
show  unto  your  honors  that  their  said  general  agent  has  obtained 
specimens  of  the  said  spurious  Persian  Thread,  so  sold  by  the  said 
D.  C.  That  in  some  of  the  specimens  thus  obtained  the  thread  is 
put  upon  black  spools,  and  in  other  of  said  specimens  the  thread  is 
put  upon  red  spools ;  the  said  red  and  black  spools  are  of  the  same 
size  and  appearance  with  those  used  by  your  orators ;  on  the  top  of 
which  spurious  spools,  that  is  pasted  round  a  paper  label,  partly  gilt, 
are  printed  in  the  circle  the  words  "Taylor's  Persian  Thread," 
and  in  the  centre  of  the  circle  the  number  of  the  thread  ;  and  on  the 
other  end  on  the  bottom  of  such  spurious  spools  there  is  pasted  a 
round  paper  label,  on  some  of  which  are  printed  in  a  circle  the  words 
"J.  Taylor,  Leicester,"  and  on  others,  "J.  Taylor,"  with  the  num- 


SUPREME  COURT  FORMS.  811 

ber  of  yards  of  thread  on  the  spools,  and  across  others  of  the  labels 
on  said  black  spools  the  letters  and  figures  "  200  yds.,"  and  on  said 
red  spools  the  letters  and  figures  "  300  yards"  are  printed,  and  in 
the  centre  of  the  said  labels  there  is  impressed  the  figure  or  symbol 
of  the  head  or  forepart  of  a  lion  rampant.  And  in  other  of  said 
specimens  the  thread  is  put  on  spools  corresponding  in  all  particu- 
lars to  those  herein  just  before  described,  except  that  the  labels  on 
the  bottom  thereof  bear  a  coat-of-arms,  the  centre  of  the  shield 
whereof  contains  a  lion  rampant,  with  three  balls  over  the  same, 
and  with  the  motto  under,  "  In  Deo  conjido."  Your  orators  have 
also  obtained  specimens  of  the  envelopes  in  which  said  D.  C.'s 
spurious  thread  is  put  up  and  sold  by  him  or  his  agents,  which 
bear  the  same  inscriptions,  letters  and  stamps  that  those  used  and 
employed  by  your  orators  bear.  And  in  all  these  particulars  of 
the  labels  on  each  end  of  the  said  spurious  spools  of  thread  and 
the  envelopes  in  which  they  are  put  up,  they  are  exactly  like  the 
envelopes  and  the  labels  on  the  respective  ends  of  the  spools  of 
your  orators'  genuine  Persian  Thread,  as  hereinbefore  stated.  Your 
orators  further  show  unto  your  honors  that  they  have  not  yet  ascer- 
tained the  extent  to  which  the  said  D.  C.  has  carried  his  fraudulent 
imitation  and  sale  of  your  orators'  said  thread.  But  your  orators' 
said  general  agent  has  found  the  same  ofiered  for  sale  to  the  trade 
in  at  least  six  wholesale  or  jobbing  houses  in  the  city  of  B.  as  Tay- 
lor's Persian  Thread,  from  which  your  orators  believe,  and  they 
therefore  charge,  on  their  belief,  that  the  said  D.  C.  has  been  and 
is  engaged  in  selling  his  said  fraudulent  and  spurious  imitation  of 
your  orator's  Persian  Thread  to  a  large  extent  in  various  places  in 
the  United  States,  with  intent  that  the  same  should  circulate  and 
be  received  and  used  by  the  public  as  Taylor's  genuine  Persian 
Thread.  And  your  orators  further  show  unto  your  honors  that 
the  fraudulent  and  inequitable  conduct  of  the  said  D.  C.  is  not 
only  injuring  them  in  the  sales  of  their  said  genuine  Persian  Thread 
and  the  profits  they  would  otherwise  reasonably  make  thereon,  but, 
by  the  inferior  quality  and  false  measure  of  the  said  spurious  Per- 
sian Thread,  is  greatly  prejudicing  the  reputation  of  your  orators' 
Persian  Thread  in  the  market,  and  unless  the  said  imitation  is  dis- 
continued or  prevented,  will  ultimately  destroy  the  character  and 
standing  of  the  genuine  article.  And  your  orators  also  charge  that 
the  said  spurious  thread  is  a  fraud  and  deception  upon  the  citizens  of 


812  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

the  state  of  Massachusetts  and  of  the  United  States,  who  purchase 
the  same  believing  it  to  be  the  genuine  article  manufactured  by  your 
orators.  In  consideration  whereof,  and  forasmuch  as  your  orators 
are  remediless  in  the  premises  at  common  law,  and  cannot  have  ade- 
quate relief  save  by  the  aid  and  interposition  of  this  court ;  to  the 
end,  therefore,  that  the  said  D.  C,  if  he  can  show  why  your  ora- 
tors should  not  have  the  relief  hereby  prayed,  and  upon  his  cor- 
poral oath,  and  according  to  the  best  and  utmost  of  his  knowledge, 
remembrance,  information  and  belief,  full,  true,  direct  and  perfect 
answers  make  to  the  interrogatories  hereinafter  numbered  and  set 
forth ;  and  the  said  D.  C.  and  his  attorneys,  solicitors,  counsellors, 
agents  and  servants  may  be  enjoined  and  restrained  from  manu- 
facturing, selling  or  offering  for  sale  directly  or  indirectly,  any 
spool  cotton  sewing  thread  manufactured  by  him,  or  any  person 
other  than  your  orators,  under  the  denomination  of  "  Taylor's  Per- 
sian Thread,"  or  on  spools  with  the  words  "Taylor's  Persian 
Thread,"  or  "J.  Taylor,  Leicester,"  or  "J.  Taylor,"  printed, 
painted,  written  or  stamped,  or  attached  or  posted  thereon,  or  with 
your  orators'  said  device  of  a  lion  rampant,  or  with  their  said  coat- 
of-arms  thereon ;  or  on  spools  so  made  or  having  any  label,  print- 
ing or  device  thereon,  in  such  manner  as  to  be  colorable  imitations 
of  your  orators'  said  spool  thread,  usually  known  as  "  Taylor's  Per- 
sian Thread,"  and  that  the  said  D.  C.  may  be  decreed  to  account 
to  your  orators  for  all  the  profits  which  he  has  made  by  the  sale  of 
his  said  fraudulent  imitation  of  your  orators'  thread,  and  all  the 
profits  which  your  orators  would  have  made  on  the  sale  of  their 
genuine  thread  but  for  the  said  D.  C.'s  inequitable  and  wanton 
piracy  of  this  their  said  name,  spools  and  labels ;  and  that  your 
orators  may  have  their  costs  and  charges  in  this  behalf  paid  by  the 
said  D.  C. ;  and  that  your  orators  may  have  such  further  and  other 
relief  in  the  premises  as  to  your  honors  shall  seem  meet,  and  shall 
be  agreeable  to  equity  and  good  conscience,  may  it  please  your 
honors  to  grant  unto  your  orators  a  writ  of  injunction  issuing  out 
of  and  under  the  seal  of  this  court,  to  be  directed  to  the  said  D.  C., 
his  attorneys,  solicitors,  counsellors,  agents  and  servants,  therein 
and  thereby  commanding  and  enjoining  him,  under  a  certain  pen- 
alty in  the  said  writ  to  be  expressed,  according  to  the  foregoing 
prayer  of  your  orators.  May  it  also  please  your  honors  to  grant 
unto  your  orators  a  writ  of  subpoena  issuing  out  of  and  under  the 


SUPREME  COURT  FORMS.  813 

seal  of  this  court,  to  be  directed  to  the  said  D.  C,  commanding  him 
on  a  certain  day,  and  under  a  certain  penalty  in  the  said  writ  to  be 
inserted,  personally  to  be  and  appear  before  your  honors  in  this 
honorable  court,  then  and  there  to  answer  the  premises,  and  to 
stand  to,  abide  by  and  perform  such  order  and  decree  therein  as 
to  your  honors  shall  seem  meet,  and  shall  be  agreeable  to  equity 
and  good  conscience. 

INTERROGATORIES    TO    BE    ANSWERED    BY   D.    C. 

1.  Whether  or  not  have  you  sold  or  manufactured  in  Massachu- 
setts or  elsewhere  thread  put  upon  black  spools,  on  one  end  of  which 
goods  is  pasted,  or  otherwise  fastened,  a  circular  paper  label  partly 
gilt,  on  which  is  printed  in  a  circle  the  words  "  Taylor's  Persian 
Thread,"  and  in  the  centre  thereof  the  number  of  the  thread,  and 
on  the  other  end  of  which  is  pasted,  or  otherwise  fastened,  a  circular 
white  paper  label,  on  which  is  printed  the  words  "  J.  Taylor,  Lei- 
cester," and  across  the  same  label  "  200  yds.,"  and  in  the  centre  of 
the  same  label  there  is  impressed  the  figure  or  symbol  of  a  lion 
rampant  ? 

2.  Whether  or  not  have  you  manufactured  and  sold,  either  in 
Massachusetts  or  elsewhere,  thread  put  upon  red  spools,  correspond- 
ing in  all  respects  to  the  black  spools  described  in  the  preceding 
interrogatory,  except  in  the  color  of  the  spool  and  in  the  quantity 
of  thread  thereon,  and  in  the  letters  and  figures  "  300  yds."  printed 
across  the  said  white  paper  label  ? 

3.  What  number  of  each  kind  of  the  said  spools  of  thread  have 
you  manufactured  and  sold  ?  State  the  same  accurately,  and  dis- 
tinguish the  kind  and  number  of  the  thread,  and  the  number  of 
black  spools  and  the  number  of  red  spools  so  sold  by  you  since  you 
commenced  selling  the  same,  and  the  times  when  and  the  places 
where  the  same  have  been  sold. 

4.  What  have  been  the  profits  made  or  realized  by  you  on  the 
manufacture  and  the  sale  of  thread  put  upon  spools  colored,  deco- 
rated and  fitted  up  in  the  manner  described  in  the  first  and  second 
interrogatories  ? 

5.  To  whom  and  what  persons  in  particular  you  have  sold  said 
thread  put  up  in  the  manner  described  in  the  first  and  second  iii- 
terrosratories  ? 


814  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

6.  Who  is  and  -who  has  been  your  agent  in  Boston  for  the  sale 
of  your  thread  put  upon  spools,  fitted  up  in  the  manner  described 
in  the  first  and  second  interrogatories  ? 

7.  Whether  or  not  did  you  admit,  in  an  answer  sworn  to  and  filed 
by  you  in  the  court  of  chancery  in  and  for  the  state  of  New  York, 
to  a  bill  of  complaint  therein  pending,  wherein  the  said  J.  T.  and 
W.  F.  were  complainants  and  yourself  was  defendant,  that  you  en- 
gaged in  the  manufacture  of  sewing  cotton  thread,  which  you  caused 
to  be  put  up  for  sale  on  spools  similar  to  those  used  by  the  com- 
plainants, and  so  colored,  stamped  and  labelled  as  to  resemble 
exactly,  or  as  near  as  the  same  could  be  done,  the  said  spools  used 
by  the  complainants,  and  the  said  spool  sewing  cotton  prepared  and 
sold  by  you  was  an  exact  imitation  of  the  same  article  which  the 
complainants  had  been  selling  in  the  United  States  many  years  be- 
fore you  commenced  manufacturing  your  thread  ? 

8.  Whether  or  not  have  you  manufactured  and  sold  in  Massa- 
chusetts sewing  cotton  thread  upon  black  spools  and  upon  red 
spools,  on  one  end  of  which  is  fastened  a  circular  paper  label  on 
which  is  stamped  a  coat-of-arms,  the  shield  whereof  contains  a  lion 
rampant,  and  over  the  same  three  balls,  with  the  motto  under  the 
shield,  "-Zw  Deo  confido"  and  around  said  shield  is  printed  in  some 
of  said  labels  "J.  &  W.  Taylor,  Leicester,"  and  in  others,  "J.  k 
W.  Taylor,"  with  the  number  of  yards  on  said  spools? 

9.  Whether  or  not  have  you  put  up  and  sold  your  sewing  cotton 
thread,  colored,  stamped  and  labelled  in  all  or  some  of  the  modes 
described  in  this  bill,  in  envelopes  or  wrappers,  some  bearing  in 
raised  letters  the  inscription,  "  The  Persian  Thread  made  by  J.  & 
W.  Taylor  is  labelled  on  the  top  of  each  spool  Taylor's  Persian 
Thread,  and  on  the  bottom  J.  W.  Taylor,  Leicester.  The  above  is 
for  the  protection  of  buyers  against  certain  piratical  articles  of  in- 
ferior quality,  fraudulently  labelled  with  the  name  of  Taylor,"  and 
others  bearing  a  coat-of-arms,  the  upper  division  of  which  is  gilt 
and  has  three  red  balls  thereon,  and  the  lower  division  is  red  and 
has  a  lion  rampant  thereon. 

C.  P.  &  B.  R.  C,  Solicitors.^ 


^  This  form  is  adapted  from  the  form  [Massachusetts],  determined  in  1844  ; 

of  the  bill  in  the  case  of  Taylor  et  al.  in  which  case  a  perpetual  injunction 

V.  Carpenter,  in  the  circuit  court  of  was  granted :  3  Story  458. 
the  United  States  for  the  first  circuit 


supreme  court  forms.  815 

Form  No.  231. 

Plea  and  certificate. 
In  the  Supreme  Court  of  the  United  States. 
J.  T.,  complainant,     | 

( 
D.  C,  defendant.       J 

The  said  ,  defendant,  by  E.  F.,  his  solicitor,  comes  and 

says  that  this  court  ought  not  to  take  further  cognizance  of  this 
suit,  because  the  complainant  herein  is  not  a  consul  of  at 

the  city  of  .  as  stated  in  his  bill  of  complaint  herein,  nor  was 

he  at  the  time  of  the  filing  of  his  said  bill,  and  this  he  is  ready  to 
verify. 

[If  the  plea  is  of  another  bill  pending,  say :  "  That  heretofore, 
and  before  the  said  complainant  exhibited  his  bill  in  this  honorable 
court,  to  wit,  on  the  day  of  ,  18     ,  the  said  com- 

plainant in  the  circuit  court  of  the  United  States  at  ,  in  the 

circuit,  for  the  same  matters  and  to  the  same  effect,  and 
for  like  cause  of  complaint  and  relief  as  in  this  his  bill  herein,  and 
to  which  bill  this  defendant  did  then  and  there  put  in  an  answer, 
and  said  bill  is  still  pending  in  said  court  and  undetermined."] 

Wherefore  he  prays  judgment  if  the  court  here  will  take  cogni- 
zance of  or  entertain  this  action. 

G.  F.,  Solicitor  for  defendant. 

I,  E.  F.,  solicitor  for  the  defendant  in  this  suit,  hereby  certify 
that  in  my  opinion  the  foregoing  plea  to  the  bill  of  complaint  filed 
herein  is  well  founded  in  point  of  law. 

G.  F.,  Solicitor  for  defendant. 


Form  No.  232. 

Ansv7er  in  the  Supreme  Court. 
In  the  Supreme  Court  of  the  United  States. 
J.  T.,  complainant,    "j 

V.  y  Answer. 

D.  C,  defendant.       J 

The    answer  of   D.  C,  defendant,  to  the  bill  of   complaint  of 
J.  T.,  complainant. 


816  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

The  said  defendant  admits  that  the  complainant  is  an  alien  and 
a  consul  of  her  majesty  Queen  Victoria,  for  the  city  of  New  York, 
duly  appointed  and  accredited  by  the  government  of  Great  Britain, 
and  duly  recognized  as  such  by  the  government  of  the  United 
States  of  America ;  and  that  he  or  others  using  his  name  have  been 
engaged  in  vending  sewing  cotton  threads  in  New  York  and  Bos- 
ton ;  but  he  does  not  admit  that  is  the  manufacturer 
thereof,  and  he  alleges  that  he  purchases  the  thread  and  winds  it 
on  spools  labelled  and  marked  as  in  the  bill  set  forth,  and  encloses 
it  in  envelopes  as  described  in  the  bill. 

The  defendant  further  admits  that  the  threads  vended  by  the 
complainant  have  acquired  a  good  reputation  in  the  United  States, 
but  he  avers  that  the  same  had  fallen  off  before  the  complainant 
began  to  deal  in  and  put  up  said  threads,  and  the  defendant  has 
been  informed  and  believes  that  during  the  last  three  or  four  years 
large  quantities  of  thread  have  been  spooled  and  labeUed  as  "  Taylor's 
Thread  "  or  "Persian  Thread  "  in  England  by  persons  other  than 
complainant,  and  exported  to  the  United  States  as  the  thread  of 
complainant  so  publicly  that  the  complainant  knew  the  same,  or 
was  legally  affected  with  notice  thereof. 

Defendant  further  avers  that  his  thread  is  as  good  as  that  of  the 
complainant.  He  admits  that  he  has  put  up  the  thread  on  black 
spools  labelled  as  described  in  the  bill  of  complainant,  and  in  en- 
velopes similar  to  those  described  therein  and  with  raised  letters 
thereon ;  but  he  avers  that  he  never  put  up  thread  in  envelopes 
bearing  a  coat- of  arms,  or  on  red  spools  bearing  a  coat-of-arms,  or 
on  spools  labelled  300  yards,  or  on  any  spools  bearing  such  a  mark, 
or  the  figure  of  the  head  and  forepart  of  a  lion  rampant. 

He  further  avers  that  he  consigned  all  his  threads  to  E.  for  sale 
as  his  agent,  and  always  instructed  him  to  inform  purchasers  that 
they  were  of  domestic  manufacture ;  that  he  is  informed  by  the  said 
E.,  and  believes,  that  he  never  pretended  that  the  said  threads  were 
those  vended  by  complainant ;  that  he,  the  said  defendant,  never 
sold  any  threads  under  such  pretence,  but  on  the  contrary  he  and 
his  said  agent  always  informed  purchasers  that  the  threads  were  of 
domestic  manufacture,  and  not  made  or  put  up  by  the  complainant. 

The  defendant  further  avers  that  the  complainant  is  an  alien, 
and  has  no  exclusive  right  of  vending  spool  cotton  thread  put  up, 
labelled  and  marked  in  the  manner  set  forth  in  the  bill ;  that  the 


SUPREME  COURT  FORMS.  817 

defendant  had  full  right  and  authority  to  manufacture  threads  and 
put  it  up  on  spools,  and  with  labels  in  all  respects  similar  to  those 
of  the  complainant,  and  to  sell  the  same  in  the  United  States  with- 
out becoming  liable  to  the  plaintiff  for  so  doing.  And  this  defend- 
ant further  answering  denies  that  any  citizens  of  the  United  States 
have  been  injured  by  his  sale  of  said  threads  as  aforesaid. 

And  the  defendant  further  answering;  states  that  for  six  or  seven 
years  before  and  ever  since  he  commenced  putting  up  threads  as 
aforesaid,  divers  persons  other  than  the  complainants  or  defendants 
have  manufactured  and  put  up  thread  on  spools,  colored,  labelled, 
stamped  and  enclosed  in  the  same  manner  as  alleged  by  the  com- 
plainant for  sale  in  the  United  States,  so  publicly  that  the  com- 
plainant or  his  agents  either  knew  the  same  or  were  affected  with 
notice  thereof;  that  according  to  the  custom  of  trade  the  defendant 
IS  not  liable  or  accountable  to  the  complainant,  or  to  any  foreign 
manufacturer  or  vender,  for  using  in  the  United  States  their  trade 
marks,  numbers,  labels,  names,  stamps,  figures,  designs  or  emblems. 

The  defendant  in  answer  to  the  first  interrogatory  of  said  bill 
says  that  he  has  manufactured  and  sold  in  Massachusetts  thread 
upon  black  spools  of  the  description  contained  in  said  interrogatory, 
except,  etc. 

In  answer  to  the  second  interrogatory  he  says  that  he  has  not 
manufactured  or  sold  thread  upon  red  spools  marked  as  described 
in  said  interrogatory,  etc. 

In  answer  to  the  third  interrogatory  he  says  that  he  has  manu- 
factured and  sold  black  spools  marked,  numbered  and  labelled  as 
aforesaid,  etc. 

In  answer  to  the  fourth  interrogatory  he  says  that  his  profit  upon 
the  spool  thread  manufactured  and  sold,  colored  and  marked  as 
aforesaid,  has  been,  etc. 

In  answer  to  the  fifth  interrogatory  he  says  that  he  has  sold  said 
thread  to,  etc. 

In  answer  to  the  sixth  interrogatory  he  says  that  his  sole  agent 
in  Boston  for  the  sale  of  thread  as  aforesaid  was  E.,  etc. 

In  answer  to  the  seventh  interrogatory  he  says  that  he  has  not, 
etc. 

In  answer  to  the  eighth  interrogatory  he  says- that  he  has  not, 
etc. 

And  the  defendant  further  answering  denies  that  the  said  com- 
52 


818  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

plainant  is  entitled  to  the  relief  or  any  part  thereof  in  the  said 
complaint  demanded.  And  the  defendant  prays  the  same  advantage 
of  his  aforesaid  answer  as  if  he  had  pleaded  or  demurred  to  the 
said  bill  of  complaint.  And  the  defendant  prays  leave  to  be  dis- 
missed with  his  reasonable  costs  and  charges  in  this  behalf  most 

wrongfully  sustained. 

E.  F.,  Defendant. 
0.  P.,  Solicitor  for  defendant. 


Form  No.  233. 

Form  of  verification  of  answer  in  the  Supreme  Court. 

United  States  of  America, 
Supreme  Court. 
C.  D.,  being  duly  sworn,  deposes  and  says  that  he  is  the  de- 
fendant named  in  the  foregoing  answer;  that  he  has  read  the  same 
and  knows  the  contents  thereof,  and  that  the  same  is  true  of  his  own 
knowledge,  except  as  to  the  matters  therein  stated  on  information 
and  belief,  and  as  to  those  matters  he  verily  believes  it  to  be  true. 

C.  D. 
Subscribed  and  sworn  to  this  day  of  ,  18     , 

before  me. 

E.  F.,  United  States  commissioner. 


Form  No.  234. 

Assignment  of  errors  in  the   Supreme  Court  of  the  United   States. 

V.  V  In  error. 

Of  December  term,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and 

Afterwards,  to  wit,  on  the  first  Monday  of  December,  in  this 
same  term,  before  the  justices  of  the  Supreme  Court  of  the 
United  States,  at  the  Capitol,  in  the  city  of  Washington,  comes 
the  said  ,  by  his  attorney,  and  says  that  in 

the  record  and  •  proceedings  aforesaid  there  is  manifest  error, 
in  this,  to  wit,  that  the  declaration  aforesaid,  and  the  matters 
therein  contained,  are  not  guflScient  in  law  for  the  said 


SUPREME  COURT  FORMS.  819 

to  have  or  maintain  his  aforesaid  action  thereof  against  the  said 
;  there  is  also  error  in  this,  to  wit,  that  by  the  record 
aforesaid  it  appears  that  the  judgment  aforesaid  given  was  given 
for  the  said  against  the  said  ,  whereas  by  the  law 

of  the  land  the  said  judgment  ought  to  have  been  given  for  the 
said  against  the  said  ,  and  the  said  prays 

the  judgment  aforesaid  may  be  reversed,  annulled  and  altogether 
held  for  nothing,  and  that  he  may  be  restored  to  all  things  which 
he  hath  lost  by  occasion  of  the  said  judgment,  etc. 

,  Attorney  for  plaintiflf  in  error. 


•  Form  No.  235. 

Joinder  in  error. 

Supreme  Court  of  the  United  States. 

V.  y  In  error. 

And  afterwards,  to  wit,  on  the  first  Monday  of  December,  in  De- 
cember term,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  ,  the  said  ,  by  his  attorney,  freely 

comes  here  into  court,  and  says  that  there  is  no  error,  either  in  the 
record  and  proceedings  aforesaid  or  in  the  giving  of  the  judgment 
aforesaid  ;  and  he  prays  that  the  said  Supreme  Court  of  judicature, 
before  the  justices  thereof  now  here,  may  proceed  to  examine  as 
well  the  record  and  proceedings  aforesaid  as  the  matters  aforesaid 
above  assigned  for  error;  and  that  the  judgment  aforesaid,  in  form 
as  aforesaid  given,  may  be  in  all  things  aflfirmed,  etc. 

,  Attorney  for  defendant  in  error. 


Form  No.  236. 

Precipe  for  appearance. 

Supreme  Court  of  the  United  States,  term,  18     ,  No. 

T.  T.,  complainant,   ^ 

( 
D.  C,  defendant.      J 

The  clerk  will  enter  my  appearance  as  counsel  for  defendant. 

G.  F. 


820         federal  pleading,  practice  and  procedure. 

Form  No.  237. 

Receipt  for  record. 
Supreme  Court  of  the  United  States,  term,  18     ,  No.     . 

T.  T.,  complainant, 

V. 

D.  C,  defendant. 

Received  from  the  clerk  a  copy  of  the  record,  as  counsel  for 

defendant. 

G.  F. 


Form  No.  238. 

Bond  for  clerk's  fees. 

[Title  of  cause.] 

Know  all  men  by  these  presents  that  we,  ,  of  , 

in  the  county  of  and  state  of  ,  and  ,  of 

,  in  the  county  of  and  state  of  ,  are 

held  and  firmly  bound  unto  William  T.  Otto,  clerk  of  the  Supreme 
Court  of  the  United  States,  in  the  full  and  just  sum  of  two  hundred 
dollars,  current  money  of  the  United  States,  to  be  paid  to  the  said 
William  T.  Otto,  his  heirs,  executors,  administrators  or  assigns ;  to 
which  payment,  well  and  truly  to  be  made,  we  bind  ourselves,  our 
heirs,  executors  and  administrators,  jointly  and  severally,  by  these 
presents.     Sealed  with  our  seals,  and  dated  this  day  of 

,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and 

Whereas,  lately,  at  ,  in  a  suit  depending  in  said  court, 

between  ,  a  judgment  was  rendered  against  the  said  , 

and  the  said  having  obtained  to  remove  the  said 

cause  to  the  Supreme  Court  of  the  United  States,  and  filed  a 
transcript  of  the  record  of  said  court  in  said  cause  in  the  oflSce  of 
the  clerk  of  the  Supreme  Court  of  the  United  States,  to  reverse 
the  in  the  aforesaid  suit. 

Now,  the  condition  of  the  above  obligation  is  such  that  if  the 
said  obligors  shall  well  and  truly  pay,  or  cause  to  be  paid,  to  the 
said  William  T.  Otto,  his  heirs,  executors,  administrators  or  assigns, 
all  such  fees  as  shall  accrue  to  him,  the  said  William  T.  Otto,  clerk 
as  aforesaid,  and  charged  to  the  said  in  the  prosecution 


SUPREME  COURT  FORMS.  821 

of  the  said  ,  then  the  above  obligation  to  be  void  ;  other- 

wise to  remain  in  full  force  and  virtue.- 

[L.  S.] 

Sealed  and  delivered  in  the  presence  of  [l.  s.] 

[The  party  (plaintiff  in  error  or  appellant)  should  not  join  in  the 
bond,  as  he  is  bound  without  it.] 

I,  ,  of  the  court  of  the  United  States  for  the 

district  of  ,  do  hereby  certify  that  the  within- 

named  obligors  are  known  to  me  to  be  perfectly  good  and  respon- 
sible for  the  within-named  amount. 

,  Judge. 


Form  No.  239. 

"Writ  of  error  to  a  state  court. 

United  States  of  America,  ss  : 
The  President  of  the  United  States  to  the  honorable  the  , 

Greeting : 

Because,  in  the  record  and  proceedings,  as  also  in  the  rendition 
of  the  judgment  of  a  plea  which  is  in  the  said  before  you, 

or  some  of  you,  being  the  highest  court  of  law  or  equity  of  the 
said  state  in  which  a  decision  could  be  had  in  the  said  suit  between 
5  wherein  was  drawn  in  question  the  validity  of  a  treaty  of  [or 
statute  of,  or  an  authority  exercised  under]  the  United  States,  and 
the  decision  was  against  its  validity  [or  wherein  was  drawn  in 
question  the  validity  of  a  statute  of,  or  an  authority  exercised 
under,  said  state,  on  the  ground  of  their  being  repugnant  to  the 
Constitution,  treaties  or  laws  of  the  United  States,  and  the  decision 
was  in  favor  of  such  their  validity ;  or  wherein  was  drawn  in  ques- 
tion the  construction  of  a  clause  of  the  Constitution,  or  of  a  treaty 
or  statute  of,  or  commission  held  under,  the  United  States,  and  the 
decision  was  against  the  title,  right,  privilege  or  exemption  specially 
set  up  or  claimed  under  such  clause  of  the  said  Constitution,  treaty, 
statute  or  commission],  a  manifest  error  hath  happened,  to  the  great 
damage  of  the  said  ,  as  by  complaint  appears.     We 

being  willing  that  error,  if  any  hath  been,  should  be  duly  corrected, 
and  full  and  speedy  justice  done  to  the  parties  aforesaid  in  this 


822  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

behalf,  do  command  you,  if  judgment  therein  be  given,  that  then 
under  your  seal,  distinctly  and  openly,  you  send  the  record  and 
proceedings  aforesaid,  with  all  things  concerning  the  same,  to  the 
Supreme  Court  of  the  United  States,  together  with  this  writ,  so 
that  you  have  the  same  at  Washington,  on  the  Monday 

of  next,  in  the  said  Supreme  Court  to  be  then  and  there 

held,  that,  the  record  and  proceedings  aforesaid  being  inspected,  the 
said  Supreme  Court  may  cause  further  to  be  done  therein  to  correct 
that  error  what  of  right,  and  according  to  the  laws  and  custom  of 
the  United  States,  should  be  done. 

Witness  the  honorable  ,  Chief  Justice  of  the  said  Supreme 

Court,  the  Monday  of  ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and 

[l.  s.]  W.  T.  0.,  Clerk  of  the  Supreme 


Court  of  the  United  States. 


Allowed  by 


-   Form  No.  240. 

Writ  of  error  to  a  federal  court. 

United  States  of  America,  ss  : 

The  President  of  the  United  States  to  the  honorable  the  judge  of 
the  court  of  the  United  States  for  the  district 

of  ,  Greeting : 

Because  in  the  record  and  proceedings,  as  also  in  the  rendition 
of  the  judgment  of  a  plea  which  is  in  the  said  court  before 

you,  ,  between  ,  a  manifest  error  hath  happened,  to 

the  great  damage  of  the  said  ,  as  by  complaint 

appears.  We  being  willing  that  error,  if  any  hath  been,  should  be 
duly  corrected,  and  full  and  speedy  justice  done  to  the  parties 
aforesaid  in  this  behalf,  do  command  you,  if  judgment  be  therein 
given,  that  then  under  your  seal,  distinctly  and  openly,  you  send 
the  record  and  proceedings  aforesaid,  with  all  things  concerning  the 
same,  to  the  Supreme  Court  of  the  United  States,  together  with 
this  writ,  so  that  you  have  the  same  at  Washington  on  the 
Monday  of  next,  in  the  said  Supreme  Court  to  be  then  and 

there  held,  that,  the  record  and  proceedings  aforesaid  being   in- 
spected,  the  said  Supreme  Court  may  cause  further  to  be  done 


SUPREME  COURT  FORMS.  823 

therein  to  correct  that  error   what  of  right,  and  according  to  the 
laws  and  custom  of  the  United  States,  should  be  done. 

Witness  the  honorable  ,  Chief  Justice  of  the  said  Supreme 

Court,  this  day  of  ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and 

[l.  s.]  W.  T.  Otto,  Clerk  of  the  Supreme 

Court  of  the  United  States. 

Allowed  by 


Form  No.  241. 

Citation. 

[Title  of  cause.] 

The  United  States  of  America  to  ,  Greeting : 

You  are  hereby  cited  and  admonished  to  be  and  appear  at  a 
Supreme  Court  of  the  United  States,  to  be  holden  at  Washington 
on  the  Monday  of  next,  pursuant  to  a  writ  of  error 

filed  in  the  clerk's  oflfice  of  the  ,  wherein  plaintiff 

in  error  and  you  are  defendant  in  error,  to  show  cause,  if  any  there 
be,  why  the  judgment  rendered  against  the  said  plaintiff  in  error, 
as  in  the  said  writ  of  error  mentioned,  should  not  be  corrected,  and 
why  speedy  justice  should  not  be  done  to  the  parties  in  that  behalf. 

Witness  the  honorable  ,  of  the  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred and 


Form  No.  242. 

Bond    on    appeal. 

[Title  of  cause.] 

Know  all  men  by  these  presents  that  we  ,  are  held  and 

firmly  bound  unto  in  the  full  and  just  sum  of  to 

be  paid  to  the  said  certain  attorney,  administrators  or  as- 

signs ;  to  which  payment,  well  and  truly  to  be  made,  we  bind  our- 
selves, our  heirs,  executors  and  administrators,  jointly  and  severally, 
by  these  presents.     Sealed  with  our  seals,  and  dated  this 
day  of  ,  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred and 


82  i  FEDERAL   PLEADING,    PRACTICE    AND    PROCEDURE. 

Whereas  lately  at  a  ,  in  a  suit  depending  in  the  circuit 

court  of  ,  between  and  was  rendered  against 

the  said  ,  and  the  said  having  obtained 

and  filed  a  copy  thereof  in  the  clerk's  oflSce  of  the  said  court  to 
reverse  the  in  the  aforesaid  suit  [or  having  prosecuted  a  writ 

of  error  in  the  Supreme  Court  of  the  United  States  to  reverse  the 
judgment  aforesaid],  and  a  citation  having  issued  directed  to  the 
said  ,  citing  and  admonishing  him  to  be  and  appear  at  a^ 

Supreme  Court  of  the  United  States,  to  be  holden  at  Washington 
the  first  Monday  of  December  next. 

Now  the  condition  of  the  above  obligation  is  such  that  if  the  said 

shall  prosecute  his  appeal  [or  writ  of  error]  to  effect,  and 

answer  all  damages  and  costs  if  fail  to  make  his  plea  good, 

then  the  above  obligation  to  be  void ;  else  to  remain  in  full  force 

and  virtue. 

Sealed  and  delivered  in  the  presence  of 

[L.  S.] 

-    justification. 

United  States  of  America,  ) 

>  ss  ' 

DISTRICT  OP  .         J         ' 

,  being  duly  sworn,  depose  and  say  and  each  for  him- 
self saith  that  he  is  worth  $  over  and  above  all  just  debts 
and  liabilities  and  exemptions. 


[Signed  by  sureties.] 


Sworn  to  this  day  of  ,  18     ,  before  me. 

,  Commissioner. 

Approve  the  within  bond  and  the  sureties  thereto. 

,  Clerk. 


Form  No.  243. 

Bond  on  certificate  of  division  of  opinion. 

Know  all  men  by  these  presents  that  are  held  and  firmly 

bound  unto  W.  T.  0.,  clerk  of  the  Supreme  Court  of  the  United 


SUPREME  COURT  FORMS.  825 

States,  in  the  full  and  just  sum  of  two  hundred   dollars,  current 
money  of  the  United  States,  to  be  paid  to  the  said  ,  his 

heirs,  executors,  administrators  or  assigns ;  to  which  payment,  well 
and  truly  to  be  made,  bind  heirs,  executors  and 

administrators,  jointly  and  severally,  by  these  presents.     Sealed 
with  seal  ,  and  dated  this  day  of  ,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and 

Whereas  having  filed  in  the  Supreme  Court  of  the  United 

States  a  certificate  of  a  division  in   opinion  of  the  judges  of  the 
circuit  court  of  the  United  States  for  the  district  of  ,  in  a 

suit  depending  in  said  court,  wherein  the  said  and 

for  the  decision  of  said  Supreme  Court  in  said  case,  agreeably  to 
the  act  of  Congress  in  such  case  made  and  provided : 

Now  the  condition  of  the  above  obligation  is  such,  that  if  the  said 
shall  well  and  truly  pay,  or  cause  to  be  paid,  to  the  said 
,  his  heirs,  executors,  administrators  or  assigns,  all  such 
fees  as  shall  accrue  to  him,  the  said  W.  T.  0.,  clerk,  as  aforesaid, 
and  chargeable  to  the  said  ,  in  the  prosecution  of  said  suit, 

then  the  above  obligation  to  be  void ;  otherwise  to  remain  in  full 
force  and  virtue. 

Sealed  and  delivered  in  presence  of  [l.  s.] 

[Justification  as  in  last  form.] 


Form  No.  244. 

Judgment  on  -writ  of  error  to  state  court. 
[Title  of  cause.] 

Supreme  Court  of  the  United  States,  term,  18 

In  error  to  the  court  of  the  state  of 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record 
from  the  court  of  the  state  of  ,  and  was  argued 

by  counsel. 

On  consideration  whereof,  it  is  now  here  ordered  by 

this  court  that  the  of  the  said  court,  in  this 

cause,  be  and  the  same  is  hereby  [state  the  judgment]. 


826         federal  pleading,  practice  and  procedure. 

Form  No.  245. 

Judgment  on  v/rit  to  federal  court. 
[Title  of  cause.] 

Supreme  Court  of  the  United  States,  term,  18     . 

In  error  to  the  court  of  the  United  States  for  the 

district  of 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record 
from  the  court  of  the  United  States  for  the  dis- 

trict of  ,  and  was  argued  by  counsel. 

On  consideration  whereof,  it  is  now  here  ordered  and  adjudged 
by  this  court  that  the  judgment  of  the  said  court,  in  this 

cause,  be  and  the  same  is  hereby  [state  the  judgment]. 


Form  No.  246. 

Decree  on  appeaL 

[Title  of  cause.] 

Supreme  Court  of  the  United  States,  term,  18     . 

Appeal  from  the  court  of  the  United   States   for  the 

district  court  of 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record 
from  the  court  of  the  United  States  for  the  dis- 

trict of  ,  and  was  argued  by  counsel. 

On  consideration  whereof,  it  is  now  here  ordered,  adjudged  and 
decreed  by  this  court  that  the  decree  of  the  said  court,  in 

this  cause,  be  and  the  same  is  hereby  [state  the  judgment]. 


Form  No.  247. 

Mandate  to  state  court. 

United  States  of  America,  ss: 
The  President  of  the  United  States  of  America  to  the  honorable 
the  judges  of  the  ,   Crreetmg : 

Whereas  lately,  in  the  ,  before  you  or  some  of  you,  in 

a  cause  between  and  ,  as  by  the  inspection  of  the 

transcript  of  the  record  of  the  said  cause,  which  was  brought  into 
the  Supreme  Court  of  the  United   States,  by  virtue  of  a  writ  of 


SUPREME  COURT  FORMS.  827 

error,  agreeably  to  the  statute  in  such  case  made  and 

provided  fully  and  at  large  appears. 

And  whereas  in  the  present  term  of  ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and  ,  the  said  cause 

came  on  to  be  heard  before  the  Supreme  Court  of  the  United 
States  on  the  said  transcript  of  the  record,  and  was  argued  by  coun- 
sel. On  consideration  whereof  [here  state  the  decree],  and  the  same 
is  hereby  remanded  to  you,  the  said  judges  of  the  said  ,  in 

order  that  such  proceedings  may  be  had  in  the  said  cause, 

in  conformity  to  the  judgment  and  decree  of  this  court  above  stated, 
as,  according  to  right  and  justice,  and  the  Constitution  and  laws  of 
the  United  States,  ought  to  be  had  therein,  the  said  writ  of  error 
notwithstanding. 

Witness  the  honorable  ,  Chief  Justice  of  the  said 

Supreme  Court,  the  Monday  of  ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 

W.  T.  0.,  Clerk  of  the  Supreme  Court. 

COSTS. 

Clerk, $ 

Attorney,       ......... 

Taxed  by 

W.  T.  0.,  Clerk  of  the  Supreme  Court  of  the  United  States. 


Form  No.  248. 

Decree  of  Supreme  Court  vrhere    no  point   has   been    duly  certified 
on  a  division  of  opinion. 

[Title  of  cause.] 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record 
from  the  circuit  court  of  the  United  States  for  the  southern  district 
of  Mississippi,  and  on  the  point  and  question  on  which  the  judges 
of  the  said  circuit  court  were  opposed  in  opinion  and  which  was 
certified  to  this  court  for  its  opinion  agreeably  to  the  act  of  Congress 
in  such  case  made  and  provided,  and  was  argued  by  counsel.  And 
it  appearing  to  this  court,  upon  an  inspection  of  the  said  transcript, 
that  no  point  in  the  case  within  the  meaning  of  the  act  of  Congress 
has  been  certified  to  this  court,  it  is  thereupon  now  here  ordered 
and  decreed  by  this  court  that  this  cause  be  and  is  hereby  dis- 


828  FEDERAL    PLEADING,    PKACTICE   AND    PROCEDURE. 

missed,  and  that  this  cause  be  and  is  hereby  remanded  to  the  said 
circuit  court  to  be  proceeded  with  in  accordance  with  law. 


Form  No.  249. 

Judgment  of  Supreme  Court  on  a  certificate  of  division  of  opinion. 

[Title  of  cause.] 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record 
from  the  circuit  court  of  the  United  States  for  the  district  of  Rhode 
Island,  and  on  the  points  and  questions  on  which  the  judges  of  the 
said  circuit  court  were  opposed  in  opinions,  and  which  were  certi- 
fied to  this  court  for  its  opinion  agreeably  to  the  act  of  Congress  in 
such  case  made  and  provided,  and  was  argued  by  counsel ;  on  con- 
sideration whereof,  it  is  the  opinion  of  this  court  that  the  grantees 
in  the  deed  confirmed  by  the  legislature  of  Rhode  Island  took  an 
absolute  title  to  the  premises  in  dispute  in  this  cause;  which  opinion 
answers  the  first,  second,  third,  fourth  and  sixth  questions  so  cer- 
tified ;  and  also  the  fifth  question,  except  that  part  of  said  fifth 
question  which  refers  to  a  description  of  the  premises,  and  which  is 
not  so  stated  as  to  enable  this  court  to  express  an  opinion ;  all  of 
which  is  hereby  ordered  and  adjudged  by  this  court  to  be  certified 
in  the  said  circuit  court. 


Form  No.  250. 

Decree  and  order  on  default. 

[Title  of  cause  as  in  No.  220.] 

The  subpoena  in  this  cause  having  been  returned  executed  sixty 
days  before  the  return  day  thereof,  and  the  defendant  having  failed 
to  appear,  it  is,  on  motion  of  the  complainant,  decreed  and  ordered 
that  the  complainant  be  at  liberty  to  proceed  ex  parte ;  and  it  is 
further  decreed  and  ordered  that  unless  the  defendant,  being  served 
with  a  copy  of  this  decree  sixty  days  before  the  ensuing  October 
term  of  this  court,  shall  appear  on  the  day  of 

said  term  and  answer  the  said  bill  of  the  complainant,  this  court 
will  proceed  to  hear  the  cause  on  the  part  of  the  complainant  and 
to  decree  on  the  matter  of  said  bill. 


supreme  court  forms.  829 

Form  No.  251. 

Mandate. 

United  States  of  America,  ss  : 

The  President  of  the  United  States  to  the  honorable  the  judges  of 
the  circuit  court  of  the  United  States  for  the  district 

of  [or  in  case  the  mandate  issues  to  a  state  court  say 

to  the  honorable  the  judges  of  the  supreme  court  or  court  of 
appeals  of  the  state  of  ],  G-reeting : 

Whereas  lately,  in  the  circuit  court  of  the  United  States  for  the 
district  of  ,  before  you  or  some  of  you,  in  a  cause 

between  A.  B.,  plaintiff,  and  C.  D.,  defendant  [or,  if  the  cause  came 
before  the  Supreme  Court  on  a  writ  of  error  to  the  highest  court  in 
the  state,  say,  whereas  lately  in  the  supreme  court  or  court  of  ap- 
peals of  the  state  of  ,  before  you,  etc.],  judgment  was 
rendered  by  the  said  circuit  court  [or,  if  by  a  state  court,  say  judg- 
ment was  rendered  by  said  supreme  court  or  court  of  appeals  of 
the  state  of  ],  in  the  following  words  and  figures,  to  wit : 
[here  insert  the  judgment]  as  by  the  inspection  of  the  transcript  of 
the  record  of  the  said  circuit  court  [or  of  said  supreme  court  or 
court  of  appeals],  which  was  brought  into  the  Supreme  Court  of 
the  United  States  by  virtue  of  a  writ  of  error  [or  an  appeal  taken], 
agreeably  to  the  act  of  Congress  in  such  case  made  and  provided, 
fully  and  at  large  appears ;  and  whereas  in  the  present  October 
term,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
eighty-  ,  the  said  cause  came  on  to  be  heard  before  the  said 
Supreme  Court  on  the  said  transcript  of  the  record,  and  was  ar- 
gued by  counsel :  on  consideration  whereof,  it  is  now  here  ordered, 
adjudged  and  decreed  by  this  court  that  the  judgment  of  said  circuit 
court  [or  supreme  court  or  court  of  appeals]  in  this  cause  be  and 
the  same  is  hereby  reversed  [or  affirmed],  with  costs.  [Here  add 
any  order  or  direction  given  to  the  court  below ;  such  as  a  direction 
to  set  aside  a  verdict,  to  grant  a  new  trial,  or  awarding  costs.] 

You  are,  therefore,  commanded  that  such  execution  and  proceed- 
ings be  had  in  said  cause  as  according  to  right  and  justice  and  the 
laws  of  the  United  States  ought  to  be  had,  the  said  appeal  not- 
withstanding. 

Witness  the  honorable  ,  Chief  Justice  of  the  said  Supreme 


830  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

Court,  the  first  Monday  in  October,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  eighty- 

E.  F.,  Clerk  of  the  Supreme  Court 

of  the  United  States. 

Form  No.  252. 

Decree  annulling  former  decree  and  revoking  a  mandate.^ 

[Title  of  cause.] 
On  consideration  of  the  motion  made  by  Mr.  Sargeant,  on  a  prior 
day  of  the  present  term  of  this  court,  to  wit,  on  Monday,  the  11th 
ultimo,  and  of  the  arguments  of  counsel  thereupon  had,  as  well 
against  as  in  support  of  said  motion,  it  is  now  here  ordered,  ad- 
judged and  decreed  that  the  judgment  and  decree  of  this  court, 
rendered  in  the  above-entitled  cause  on  Wednesday,  the  26th  day 
of  February,  A.  D.  1840,  be  and  the  same  is  hereby  declared  ut- 
terly null  and  void ;  and  that  the  mandate  of  this  court  directed  to 
the  judges  of  said  circuit  court  in  this  cause  be  and  the  same  is 
hereby  revoked.  And  it  is  also  now  here  further  ordered  that  the 
clerk  of  this  court  do  forthwith  send  to  the  judges  of  the  circuit 
court  of  the  United  States  for  the  southern  district  of  Alabama  a 
copy  of  this  order  of  the  court,  under  the  seal  of  this  court,  to- 
gether with  a  copy  of  the  opinion  of  this  court  pronounced  this 
day.  

Form  No.  253. 

Form  of  order  and  decree  where  the  court  has  no  jurisdiction. ^ 

[Title  of  cause.] 
This  cause-  came  on  to  be  heard  on  the  transcript  of  the  record 
from  the  circuit  court  of  the  United  States  for  the  district  of  Massa- 
chusetts, and  was  argued  by  counsel.  On  consideration  whereof, 
it  is  the  opinion  of  this  court  that  neither  said  circuit  court,  nor 
said  district  court  from  which  this  case  was  removed  to  the  said 
circuit  court,  had  jurisdiction  of  this  cause,  and  that  consequently* 
this  court  has  not  jurisdiction,  but  for  the  purpose  of  reversing  the 
decree  of  said  circuit  court.  Whereupon  it  is  now  here  ordered 
and  decreed  by  this  court  that  the  decree  of  the  said  circuit  court, 
entertaining  jurisdiction  of  the  cause,  be  and  the  same  is  hereby 

1  Ex  parte  Crenshaw,  15  Pet.  124.  ^  Cutter  v.  Rae,  7  How.  737  (1849). 


SUPREME  COURT  FORMS.  831 

reversed  for  the  want  of  jurisdiction  in  that  court ;  and  that  this 
appeal  be  and  the  same  is  hereby  dismissed  for  the  want  of  juris- 
diction ;  and  that  this  cause  be  and  the  same  is  hereby  remanded 
to  the  said  circuit  court,  with  directions  to  proceed  therein  in  con- 
formity to  the  opinion  of  this  court. 


Form  No.  254. 

Form  of  suggestion  for  prohibition. 
In  the  Supreme  Court  of 


the  United  States  of  America. 

S.  B.  D.,  of  the  city  of  Philadelphia,  in  the  state  of  Pennsyl- 
vania, being  duly  sworn  deposes  and  says  : 

1st.  That  he  is  a  lieutenant  in  the  navy  of  the  French  republic 
and  commander  of  the  Cassius,  a  vessel  of  war  of  the  republic,  in 
her  service  and  duly  commissioned  to  cruise  against  her  enemies, 
and  make  prizes  of  their  ships  and  goods,  as  provided  by  his  com- 
mission. 

2d.  That  on  the  day  of  ,  1795,  one  James 

Yard,  a  citizen  of  Pennsylvania,  filed  a  libel  in  the  district  court  of 
the  United  States  within  and  for  the  district  of  Pennsyl- 

vania, before  the  honorable  Richard  Peters,  judge  of  said  court,  as 
the  owner  of  the  schooner  William  Lindsay  and  her  cargo,  stating 
that  while  the  schooner  was  on  a  voyage  from  the  island  of  St. 
Thomas  to  St.  Domingo,  with  all  the  regular  documents  of  property 
and  national  character,  she  was  violently  and  tortiously,  and  con- 
trary to  the  law  of  nations,  attacked  and  taken  by  a  certain  armed 
vessel  called  the  Cassius,  commanded  by  the  deponent,  pretending 
an  authority  from  the  French  republic,  but  then  and  now  a  citizen 
of  the  United  States  of  America,  and  carried  into  the  JPort  de  Paix, 
where  the  vessel  was  detained ;  that  the  vessel  was  originally  fitted 
out  and  equipped  for  war  in  the  state  of  Pennsylvania,  contrary  to 
the  laws  of  the  United  States  and  the  laws  and  usages  of  nations ; 
that  no  compensation  had  been  received  by  the  libellant  for  the 
injuries  sustained  by  him,  and  that  the  Cassius  and  the  deponent 
were  then  in  the  port  of  Philadelphia,  and  asking  that  he  might  be 
compensated  for  the  illegal  taking  and  detention  of  the  said  schooner 
Lindsay  and  her  cargo,  and  asking  for  process  to  be  issued  for  seiz- 


832  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

ing  said  vessel  Cassius,  and  her  tackle,  apparel  and  furniture,  and 
for  arresting  the  body  of  your  deponent,  etc. 

3d.  That  thereupon  process  was  issued  by  order  of  said  court,  and 
your  orator  was  arrested,  and  the  said  Cassius,  etc.,  attached. 

4th.  This  deponent  further  suggests  that  by  the  laws  of  nations 
and  by  treaties  subsisting  between  the  United  States  and  the  French 
republic,  trials  and  captures  on  the  high  seas  of  vessels  brought 
within  the  dominion  and  jurisdiction  of  the  republic,  and  all  ques- 
tions incidental  thereto,  belong  exclusively  to  the  judiciary  of  the 
republic  and  to  no  other  tribunals. 

That  by  the  laws  of  nations  and  the  treaties  between  the  United 
States  and  the  French  republic,  the  vessels  of  war  of  the  republic 
and  the  oflficers  commanding  them  cannot  be  sued  or  arrested  in  the 
ports  of  the  United  States,  for  captures  made  on  the  high  seas,  and 
brought  for  legal  adjudication  into  the  ports  of  the  republic ;  and 
the  district  court  of  the  United  States  ought  not  to  maintain  juris- 
diction or  hold  pleas  of  such  captures. 

That  by  the  laws  of  nations  the  vessels  of  war  of  belligerent 
powers,  duly  authorized,  may  take  as  prizes  of  war  the  ships  and 
goods  of  their  enemies ;  and  may,  in  time  of  war,  arrest  and  seize 
the  vessels  belonging  to  the  subjects  and  citizens  of  neutral  nations, 
and  bring  them  into  the  ports  of  the  sovereign  under  whom  they 
act,  there  to  answer  for  any  breaches  of  the  laws  of  nations  con- 
cerning the  navigation  of  neutrals  in  time  of  war ;  and  the  com- 
manders of  such  vessels  are  not  amenable  before  the  tribunals  of 
neutral  powers  for  their  conduct  therein,  but  only  to  their  own 
sovereign  under  whom  they  act. 

Wherefore  the  said  S.  B.  D.,  the  aid  of  this  honorable  court 
most  respectfully  requesting,  prays  remedy,  by  a  writ  of  prohi- 
bition to  be  issued  out  of  this  honorable  court  to  the  said  judge  of 
the  district  court  of  the  United  States  in  and  for  the  district  of 
Pennsylvania,  to  be  directed  to  prohibit  him  from  holding  the  plea 
aforesaid,  the  premises  aforesaid  anywise  concerning,  further  before 
him. 

[Jurat.]  S.  B.  D.^ 

1  It  may  be  proper  here  to  observe  and  take  affidavits  for  the  courts  of 

that  the  clerks  of  the  various  United  the  United  States.     See  act  approved 

States  courts,  commissioners  and  no-  August  15,  1876,  19  U.  S.  Stat.  206. 
taries  public,  may  administer  oaths 


supkeme  court  forms.  833 

Form  No.  255. 

Form  of  writ  of  prohibition. 

United  States  of  America: 
The  President  of  the  United   States    to  the  honorable    Richard 
Peters,  esquire,  judge  of  the  district  court  of  the  United  States 
in  and  for  the  Pennsylvania  district : 

It  is  shown  to  the  judges  of  the  Supreme  Court  of  the  United 
States,  bj  Samuel  B.  Davis,  that  whereas,  by  the  laws  of  nations 
and  the  treaties  subsisting  between  the  United  States  and  the  re- 
public of  France,  the  trial  of  prizes  taken  on  the  high  seas, 
without  the  territorial  limits  and  jurisdiction  of  the  United  States, 
and  brought  within  the  dominion  and  jurisdiction  of  the  said  re- 
public for  legal  adjudication,  by  vessels  of  war  belonging  to  the 
sovereignty  of  the  said  republic,  acting  under  the  same,  and  of  all 
questions  incidental  thereto,  does  of  right  and  exclusively  belong  to 
the  tribunals  and  judiciary  establishments  of  said  republic,  and  to 
no  other  tribunal  or  tribunals,  court  or  courts,  whatsoever: 

Wherefore  the  said  Samuel  B.  Davis,  the  aid  of  the  said  Supreme 
Court  most  respectfully  requesting,  hath  prayed  remedy  by  a  writ 
of  prohibition,  to  be  issued  out  of  the  said  Supreme  Court,  to  you 
to  be  directed,  to  prohibit  you  from  holding  the  plea  aforesaid,  the 
premises  aforesaid  anywise  concerning,  further  before  you : 

You  therefore  are  hereby  prohibited,  that  you  no  further  hold 
the  plea  aforesaid,  the  premises  aforesaid  anywise  touching,  before 
you,  nor  anything  in  the  said  district  court  attempt,  nor  procure  to 
be  done,  which  may  be  in  anywise  to  the  prejudice  of  the  said 
Samuel  B.  Davis,  or  to  the  said  corvette  or  vessel  of  war  called  the 
Cassius,  or  in  contempt  of  the  laws  of  the  United  States ;  and  also, 
that  from  all  proceedings  therein  you  do,  without  delay,  release 
the  said  Samuel  B.  Davis,  and  the  vessel  of  war  called  the  Cassius, 
at  your  peril. 

"Witness  the  honorable  ,  Chief  Justice  of  said  Supreme 

Court,  with  the  seal  of  the  said   court  attached,  at  the  city  of 
Washington,  this  day  of  ,  18     . 

[seal]  ,  Clerk  of  the  Supreme  Court  of  the  United  States. 

53 


834         federal  pleading,  practice  and  procedure. 

Form  No.  256. 

Supersedeas  from  the  Supreme  Court. 

United  States  of  America,  set : 
The  President  of  the  United  States  of  America  to  the  honorable 
,  one  of  the  judges  of  the  circuit  court  of  the  United 
States   for  the    southern  district  of  Mississippi,  and  to  the 
marshal  of  the  United  States  for  the  said  district,  Greeting : 

Whereas  lately,  in  the  said  circuit  court,  before  you,  the  said 
judges,  or  some  of  you,  in  a  cause  lately  pending  in  said  court, 
between  Edward  Anderson,  plaintiff,  and  William  Hardeman  and 
D.  Hardeman,  defendants,  a  judgment  was  rendered  by  the  said 
circuit  court,  at  the  May  term,  1839,  of  said  court,  in  favor  of  the 
said  plaintiff,  and  against  the  said  defendants,  for  the  sum  of 
$8293  45,  with  interest  thereon  at  the  rate  of  eight  per  centum 
per  annum,  together  with  costs  and  charges  of  suit,  on  which  judg- 
ment an  execution  of  fieri  facias  issued,  and  was  levied  by  the 
marshal  of  said  district  on  certain  property  of  said  defendants, 
which  property  was  left  in  the  hands  of  the  defendants  upon  their 
executing  a  forthcoming  bond,  with  one  W.  P.  Perkins  as  security, 
and  which  forthcoming  bond  was  returned  by  the  said  marshal  to  the 
said  circuit  court  at  the  next  November  term  thereof,  A.  d.  1839, 
"forfeited,"  having  thereby,  according  to  the  laws  of  Mississippi, 
the  force  and  effect  of  a  judgment  against  the  said  defendants  and 
the  said  security  for  the  aforesaid  debt,  interest  and  costs,  and 
upon  which  last-mentioned  judgment  an  execution  of  fieri  facias 
was  issued  against  the  goods  and  chattels,  lands  and  tenements  of 
the  said  William  Hardeman,  D.  Hardeman  and  W.  P.  Perkins  for 
the  amount  of  the  said  judgment,  interest  and  costs  as  aforesaid, 
as  also  for  the  sum  of  $133  81  additional  costs  subsequently  accru- 
ing ;  upon  which  execution  the  aforesaid  marshal  returned  that  he 
had  received  thereon  "  $9125  in  Union  money,  or  post-notes  of  the 
Union  Bank,"  which  said  return  of  the  marshal  last  aforesaid  the 
said  circuit  court  at  a  subsequent  term,  to  wit,  on  the  20th  of  May, 
A.  D.  1840,  set  aside  and  awarded  an  alias  fieri  facias  on  the  judg- 
ment last  aforesaid.  Whereupon  the  said  William  Hardeman,  D. 
Hardeman  and  W.  P.  Perkins  sued  out  a  writ  of  error  in  due  form 
of  law  and  in  proper  time,  and  filed  their  bond  in  error,  with  Suffi- 
cient security  approved  by  one  of  the  judges  of  the  said  circuit 


SUPREME  COURT  FORMS.  835 

court,  so  as  to  operate  per  se  as  a  supersedeas,  and  which  said  writ 
of  error  was  abated  and  quashed  by  the  order  of  this  court  on  the 
28th  day  of  February,  A.  d.  1845,  by  virtue  of  the  forty-third  rule 
of  court,  in  consequence  of  the  failure  of  the  aforesaid  plaintiffs  in 
error  to  file  a  transcript  of  the  record  of  the  case  with  the  clerk  of 
this  court  and  to  have  their  case  docketed,  in  compliance  with  the 
rules  of  court.  Whereupon  the  aforesaid  plaintiffs  in  error  sued 
out  another  writ  of  error  in  due  form  of  law,  filed  their  bond  in 
error  in  a  sum  double  the  amount  of  the  aforesaid  judgment,  with 
sufficient  security  approved  by  one  of  the  judges  of  the  aforesaid 
circuit  court,  and  a  citation  having  been  regularly  taken  out,  served 
upon  the  defendant  in  error  and  duly  returned,  as  by  the  inspection 
of  the  transcript  of  the  record  of  the  said  circuit  court,  which  was 
brought  into  the  Supreme  Court  of  the  United  States  by  virtue  of 
said  writ  of  error,  agreeably  to  the  statutes  of  the  United  States  in 
such  case  made  and  provided,  fully  and  at  large  appears.  And 
whereas  in  the  present  term  of  December,  in  the  year  of  our  Lord 
eighteen  hundred  and  forty-five,  it  is  made  to  appear  on  affidavit, 
to  the  said  Supreme  Court  of  the  United  States,  that  the  failure  of 
the  aforesaid  plaintiffs  in  error  to  file  the  transcript  of  the  record 
and  docket  the  writ  of  error  first  aforesaid  mentioned,  and  which 
operated  per  se  as  a  supersedeas,  was  not  owing  to  any  neglect  or 
fault  on  their  part,  but  wholly  attributable  to  the  neglect  of  the 
clerk  of  the  said  circuit  court  to  make  out  in  due  time,  and  as  re- 
quested by  the  said  plaintiffs  in  error,  a  transcript  of  the  record  as 
alleged  in  said  affidavit,  and  that  in  consequence  thereof  they  are 
exposed  to  an  execution  of  the  aforesaid  judgment.  It  is  thereupon 
now  here  ordered  by  this  court  that  a  writ  of  supersedeas  be  and 
the  same  is  hereby  awarded,  to  be  directed  to  the  aforesaid  marshal, 
commanding  and  enjoining  him  and  his  deputies  to  stay  all  and  any 
proceedings  upon  any  execution  which  may  have  been  issued  on  the 
aforesaid  judgment  of  the  said  circuit  court  in  said  case,  and  which 
has  or  may  come  to  his  hands,  and  that  he  return  any  such  execu- 
tion with  the  writ  of  supersedeas  to  the  said  circuit  court,  and  that 
the  judges  of  the  said  circuit  court  cause  any  such  writ  of  execution 
to  be  stayed,  and  to  stay  any  execution  or  further  proceedings  of 
every  kind  and  character  on  the  judgment  of  the  said  circuit  court 
in  this  case,  pending  the  aforesaid  writ  of  error  in  this  court. 
You,  therefore,  the  marshal  of  the  United  States  for  the  southern 


836  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

district  of  Mississippi,  are  hereby  commanded  that  from  every  and 
all  proceedings  on  any  execution  on  the  aforesaid  judgment,  or  in 
anywise  molesting  the  said  defendants  on  the  account  aforesaid,  you 
entirely  surcease,  as  being  superseded,  and  that  you  do  forthwith 
return  any  such  execution  in  your  hands,  together  with  this  super- 
sedeas, to  the  said  circuit  court,  as  you  will  answer  the  contrary  at 
your  peril.  And  you,  the  judges  of  the  said  circuit  court,  are 
hereby  commanded  to  stay  any  execution  which  may  have  issued  as 
aforesaid,  and  to  stay  any  execution  or  further  proceedings  on  the 
aforesaid  judgment  of  the  said  circuit  court  in  this  case,  pending 
the  writ  of  error  last  aforesaid  in  this  court. 

Witness  the  honorable  Roger  B.  Taney,  Chief  Justice  of  said 
Supreme  Court,  this  27th  day  of  January,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  forty-six. 

Wm.  Thos.  Carroll,  Clerk  of  the  Supreme 

Court  of  the  United  States. 


Form  No.  257. 

Writ  of  mandamus. 

United  States  of  America  : 
To  the  honorable  ,  judge  of  the  district  court  of 

the  United  States   for   the  northern  district  of  New   York, 
Greeting : 

Whereas  one  Martha  Bradstreet  hath  heretofore  commenced  and 
prosecuted  in  your  court  several  certain  real  actions  or  writs  of 
right  in  your  court  lately  pending  between  said  Martha  Bradstreet, 
demandant,  and  the  following-named  tenants,  severally  and  respec- 
tively, to  wit,  ApoUos  Cooper  and  others  (naming  them).  And 
whereas  heretofore,  to  wit,  at  a  session  of  the  Supreme  Court  of 
the  United  States,  held  at  Washington,   on  the  day 

of  ,  it  appeared,  upon  the  complaint  of  said  Martha  Brad- 

street, among  other  things,  that  at  a  session  of  your  said  court, 
lately  before  holden  by  you  according  to  law,  all  and  singular  the 
said  writs  of  right  then  pending  before  your  said  court,  upon  the 
motion  of  the  tenants  aforesaid  were  dismissed,  for  the  reason  that 
there  was  no  averment  of  the  pecuniary  value  of  the  lands  de- 
manded by  the  said  demandant,  in  the  several  counts  filed  and  ex- 
hibited by  the  said  demandant  against  the  several  tenants  as  afore- 


SUPREME  COURT  FORMS.  837 

said,  ■whicb  orders  of  your  said  court  so  dismissing  the  said  actions 
were  against  the  will  and  consent  of  said  demandant;  whereupon 
the  said  Supreme  Court,  at  the  instance  of  said  demandant,  granted 
a  rule  requiring  you  to  show  cause,  if  any  you  had,  among  other 
things  why  a  writ  of  mandamus  from  the  said  Supreme  Court  should 
not  be  awarded  and  issued  to  you,  commanding  you  to  reinstate, 
and  proceed  to  try  and  adjudge  according  to  the  law  and  the  right 
of  the  case,  the  several  writs  of  right  aforesaid,  and  the  issues  there- 
in joined.  And  whereas  at  the  late  session  of  the  Supreme  Court, 
held  at  Washington  on  the  second  Monday  of  January,  in  the  year 
1833,  you  certified  and  returned  to  the  said  Supreme  Court,  together 
with  said  rule,  that,  after  the  issues  had  been  joined  in  the  several 
causes  mentioned  in  said  rule,  motions  were  made  therein,  on  the 
part  of  the  tenants,  that  the  same  should  be  dismissed,  upon  the 
ground  that  the  counts  respectively  contained  no  allegation  of  the 
value  of  the  matter  in  dispute,  and  that  it  did  not  therefore  appear 
by  the  pleadings  that  the  causes  were  within  your  jurisdiction  ;  that 
in  conformity  with  what  appeared  to  have  been  the  uniform  language 
of  the  national  courts  upon  the  question,  and  your  own  views  of 
the  law,  and  in  accordance  especially  with  several  decisions  in  the 
circuit  court  for  the  third  circuit  (4  Wash.  C.  C.  Rep.  482,  624), 
you  granted  their  motion  ;  and  assuming  that  the  causes  were  right- 
fully dismissed,  it  follows  of  course  that  you  ought  not  to  be 
required  to  reinstate  them,  unless  right  also  be  granted  to  the 
demandant  to  amend  her  counts ;  and  whereas  afterwards,  to  wit, 
at  the  same  session  of  the  Supreme  Court  last  aforesaid,  upon  con- 
sideration of  your  said  return,  and  of  the  cause  shown  by  you 
therein  against  the  said  rule  being  made  absolute,  and  against  the 
awarding  and  issuing  of  the  said  writ  of  mandamus,  and  upon  con- 
sideration of  the  argument  of  said  counsel,  as  well  on  your  behalf, 
showing  cause  as  aforesaid,  as  on  behalf  of  said  demandant  in 
support  of  said  rule,  it  was  considered  by  the  said  Supreme  Court 
that  you  had  certified  and  returned  to  the  said  Supreme  Court  an 
insufficient  cause  for  having  dismissed  the  said  actions,  and  against 
the  awarding  and  issuing  of  the  said  writ  of  mandamus,  pursuant 
to  the  rule  aforesaid  ;  the  said  Supreme  Court  being  of  opinion,  and 
having  determined  on  the  matter  aforesaid,  that  in  cases  where  the 
demand  is  not  made  for  money,  and  the  nature  of  the  action  does 
not  require  the  value  of  the  things  demanded  to  be  stated  in  the 


838  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

declaration,  the  practice  of  the  said  Supreme  Court,  and  of  the  courts 
of  the  United  States^  is  to  allow  the  value  to  be  given  in  evidence  in 
the  said  Supreme  Court,  consequently  she  cannot  be  legally  pre- 
vented from  bringing  her  case  before  the  said  Supreme  Court ;  and 
it  was  also  then  and  there  considered  by  the  said  Supreme  Court 
that  the  peremptory  writ  of  mandamus  issue  requiring  you,  the 
said  judge  of  the  said  district  court,  to  reinstate  and  proceed  to 
try  and  adjudge  according  to  the  law  and  right  of  the  case  the 
several  writs  of  right  and  the  issues  therein  joined,  lately  pending 
in  your  said  court  between  the  said  Martha  Bradstreet,  demandant, 
and  Apollos  Cooper  and  others,  the  tenants  aforesaid ;  therefore,  you 
are  hereby  commanded  and  enjoined  that  immediately  after  the 
receipt  of  this  writ,  and  without  delay,  you  reinstate  and  proceed 
to  try  and  adjudge  according  to  the  law  and  right  of  the  case  the 
several  writs  of  right  and  the  issues  joined  therein,  lately  pending 
in  your  said  court  between  the  said  Martha  Bradstreet,  demandant, 
and  the  said  Apollos  Cooper  and  others,  the  tenants  herein  above 
named,  so  that  complaint  be  not  again  made  to  the  said  Supreme 
Court ;  and  that  you  certify  perfect  obedience  and  due  execution  of 
this  writ  to  the  said  Supreme  Court,  to  be  held  on  the  first  Monday 
in  August  next.  Hereof  fail  not  at  your  peril,  and  have  then  and 
there  this  writ. 

Witness  the  honorable  John  Marshall,  Chief  Justice  of  the  said 
Supreme  Court,  the  second  Monday  of  January,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  thirty-three. 

W.  T.  Carroll,  Clerk  Supreme  Court  of  the  United  States.^ 


Form  No.  258. 

Injunction  from  the  Supreme  Court. 

The  United  States  of  America    ) 
in  the  Supreme  Court.  j 

The  President  of  the  United  States  of  America  to  Erastus  Corning, 
John  F.  Winslow  and  James  Hoi*ner. 
Whereas  in  a  certain  suit  in  the  Supreme  Court  of  the  United 
States,  removed  there  by  the'  appeal  of  the  complainant  from  the 

^  The  above  writ  was  prepared  un-    ported  in  Ex  parte  Bradstreet,  7  Pet. 
der  the  order  of  the  court,  and -is  re-     634. 


SUPREME  COURT  FORMS.  839 

circuit  court  of  the  United  States  for  the  northern  district  of  New 
York,  in  which  latter  court  the  Troy  Iron  and  Nail  Factory  was 
complainant  and  you  were  defendants  in  chancery,  the  said  Supreme 
Court  by  a  decree  made  upon  a  hearing  of  the  said  cause  this 
eighteenth  day  of  January,  in  the  year  of  our  Lord  eighteen  hun- 
dred and  fifty-three,  ordered,  adjudged  and  decreed  among  other 
things  that  an  injunction  should  issue  under  the  seal  of  the  said 
court  to  restrain  you,  the  said  Erastus  Corning,  John  F.  Winslow 
and  James  Horner,  and  each  of  you,  perpetually  from  using  the  im- 
proved machinery  with  the  bending  lever  for  making  hook  or  brad- 
headed  spikes,  patented  to  Henry  Burdue  on  the  second  day  of 
September,  a.  d.  1840,  and  assigned  to  the  complainant.  It  is 
therefore,  in  execution  of  said  decree,  hereby  firmly  enjoined  and 
commanded  you  and  every  of  you,  that  from  and  immediately  after 
being  served  with  this  writ  or  notice  thereof  you  and  every  of  you 
do  not  use  the  aforesaid  machinery ;  but  that  you  and  every  of  you 
do  from  henceforth  entirely  cease  and  desist  from  using  the  afore- 
said machinery  with  the  bending  lever  for  making  hook  and  brad- 
headed  spikes,  patented  to  Henry  Burdue  the  second  day  of 
September,  a.  d.  1840,  and  assigned  to  the  complainant ;  and  this 
you  shall  in  no  wise  omit  at  your'peril. 

Witness  the  honorable  Roger  B.  Taney,  Chief  Justice  of  the 
said  Supreme  Court,  this  eighteenth  day  of  January,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty-three. 

,  Clerk  of  the  Supreme  Court  of  the  United  States. 


Form  No.  259. 

Certificate  of  division. 

United  States  of  America,      "I 
North  Carolina  district.       J 

At  a  circuit  court  of  the  United  States,  begun  and  held  at 
Raleigh,  for  the  district  of  North  Carolina,  on  Wednesday  the 
twenty-ninth  December,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  ten,  and  in  the  twenty-seventh  year  of  American  inde- 
pendence. 

Present : — The  honorable  John  Marshall  and  Henry  Potter, 
esquires. 


840  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

Robert  Ogden,  administrator 
de  bonus  non,  with  the  will 
annexed,  of  Samuel  Cornell,  )■ 

V. 

Richard  Salter,  deceased. 

This  is  an  action  of  debt  upon  a  bond  given  by  the  defendant's 
testator  to  the  testator  of  the  plaintiff  on  the  second  of  March, 
1775. 

The  defendant  among  other  pleas  pleads  in  bar  an  act  of  the 
general  assembly  of  the  state  of  North  Carolina,  passed  in  the  year 
1715,  entitled  "An  act,"  etc.,  the  ninth  section  of  which  is  in  the 
following  words : 

"  That  the  creditors  of  any  person  deceased  shall  make  their 
claims  within  seven  years  after  the  death  of  said  debtor,  otherwise 
such  creditors  shall  be  forever  barred." 

To  which  plea  the  plaintiff  replies  in  substance  that  the  plaintiff's 
testator  was,  at  his  death,  a  British  subject,  and  the  debt  within  the 
term,  intent  and  meaning  of  the  treaty  of  peace  concluded  between 
the  king  of  Great  Britain  and  the  United  States. 

To  this  replication  the  defendaht  demurs,  and  the  plaintiff  joins 
in  the  demurrer. 

The  case  came  on  to  be  argued  at  this  term ;  it  occurred,  as  a 
question,  whether  the  act  of  assembly  recited  in  the  plea  of  the  de- 
fendant was,  under  all  the  circumstances  stated,  and  the  various  acts 
passed  by  the  legislature  of  North  Carolina,  a  bar  to  this  action. 

On  which  question  the  opinions  of  the  judges  were  opposed. 

Whereupon,  on  motion  of  the  plaintiff  by  his  counsel  that  the 
point  on  which  the  disagreement  hath  happened  may,  during  the 
term,  be  stated  under  the  direction  of  the  judges  and  certified  under 
the  seal  of  the  court  to  the  Supreme  Court,  to  be  finally  decided: 

It  is  ordered  that  the  foregoing  state  of  the  pleadings  and  the  fol- 
lowing statement  of  facts,  which  is  made  under  the  direction  of  the 
judges,  be  certified  according  to  the  request  of  the  plaintiff  by  his 
counsel,  and  the  law  in  that  case  made  and  provided,  to  wit : 

First.  That  Samuel  Cornell,  the  plaintiff's  testator,  was,  and  un- 
til his  death  continued  to  be,  a  subject  of  the  king  of  Great  Britain ; 
and  the  defendant's  testator  was,  and  continued  to  be  until  his  death, 
a  citizen  of  North  Carolina. 


SUPREME  COURT  FORMS.  841 

Second.  That  the  defendant's  testator  died  in  the  year  1780,  and 
the  defendant  in  the  same  year  was  qualified  as  executor. 

Third.  That  the  plaintiff  sued  out  his  writ  in  this  suit  on  the 
fifth  day  of  October,  1798. 

United  States  of  America,      \ 

r  SS  * 

North  Carolina  district.       J 

I,  William  H.  Haywood,  clerk  of  the  circuit  court  for  the  district 
of  North  Carolina,  do  hereby  certify  the  foregoing  to  be  a  copy 
from  the  minutes.  . 

Given  under  my  hand  and  seal  of  office  at  Raleigh,  on  the  fifth 
day  of  January,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  two.^ 

W.  H.  Haywood,  Clerk. 

Form  No.  260. 

Certiorari. 

The  United  States  of  America. 
The  President  of  the  United  States  of  America  to  the  judge  of 
,  Greeting: 

Whereas  in  a  certain  suit  in  court,  in  which  is 

plaintiff  and  is  defendant,  which  suit  was  removed  by  writ 

of  error  to  the  Supreme  Court  of  the  United  States,  agreeably  to 
the  act  of  Congress  in  such  case  made  and  provided,  certain  inac- 
curacies, defects  and  omissions  in  the  record  of  the  proceedings  have 
been  suggested,  to  wit : 

You  therefore  are  commanded  that,  searching  the  record  and  pro- 
ceedings in  said  cause,  you  certify  forthwith  to  the  said  Supreme  Court, 
under  your  seal,  a  full,  true  and  complete  transcript  of  said  record 
and  proceedings,  plainly  and  distinctly,  and  in  as  full  and  ample  a 
manner  as  the  same  now  remains  before  you,  together  with  this 
writ ;  so  that  the  said  Supreme  Court  of  the  United  States  may 
be  able  thereon  to  proceed  and  do  what  shall  appear  to  them  of 
right  ought  to  be  done.     Herein  fail  not. 

Witness  the  honorable  ,  Chief  Justice  of  the  said  Su- 

preme Court,  this  day  of 

,  Clerk  of  Supreme  Court. 

^  The  above  form  was  inserted  by    Mr.  Cranch  as  a  precedent,  in  Ogden 

V.  Blackledge,  2  Cr.  272. 


842         federal  pleading,  practice  and  procedure. 

Form  No.  262. 

Petition  for  a  habeas  corpus. 

To  the  Supreme  [or  district  or  circuit  court  of  the  United  States, 
describing  it]  Court  of  the  United  States. 

The  petitioner,  L.  P.  M.,  of  ,  complaining,  shows  that 

he  is  unjustly  and  unlawfully  detained  and  imprisoned  by  A.  B. 
[marshal  or  sheriff  or  other  person]  in  the  jail  [or  prison  or  other 
place]  at  Indianapolis,  in  the  state  of  Indiana,  by  virtue  of  a  war- 
rant [or  order  or  other  process]  of  commitment  issued  under  the 
following  circumstances  : 

Your  petitioner  is  a  citizen  of  the  United  States,  and  has  been  a 
citizen  of  the  state  of  Indiana  for  over  twenty  years,  and  at  the 
time  of  the  grievances  herein  complained  of  had  never  been  in  the 
military  or  naval  service  of  the  United  States ;  that  on  the  fifth 
day. of  October,  1864,  while  at  home  in  said  state,  he  was  arrested 
by  order  of  General  Alvin  P.  Hovey,  then  commanding  the  mili- 
tary district  of  Indiana,  and  has  ever  since  been  kept  in  close  con- 
finement;  that  on  the  "twenty-first  day  of  October,  1864,  he  was 
brought  before  a  military  commission  convened  at  Indianapolis,  by 
order  of  said  General  Hovey,  upon  the  following  charges : 

1.  Conspiracy  against  the  government  of  the  United  States. 

2.  Affording  aid  and  comfort  to  rebels  against  the  authority  of 
the  United  States. 

3.  Inciting  insurrection. 

4.  Disloyal  practices  ;  and 

5.  Violation  of  the  laws  of  war. 

Your  petitioner  objected  to  the  authority  of  the  commission  to 
try  him  on  said  charges,  but  his  objections  were  overruled  and  said 
commission  proceeded  to  try  him,  and  found  him  guilty  of  all  the 
charges,  and  sentenced  him  to  suffer  death  by  hanging,  and  he  was 
ordered  to  be  hung  on  Friday,  the  nineteenth  day  of  May,  1865, 
which  sentence  was  approved  by  the  President  of  the  United  States. 

Your  petitioner  further  shows  that  while  he  was  being  detained 
and  imprisoned  as  aforesaid,  and  more  than  twenty  days  after  his 
said  arrest,  the  circuit  court  of  the  United  States  for  the  district  of 
Indiana  was  convened  at  Indianapolis,  where  he  was  and  is  kept  in 
confinement,  and  a  grand  jury  was  then  and  there  convened  and  in 
attendance  on  said  court,  and  duly  empannelled,  charged  and  sworn 


SUPREME   COURT   FORMS.  843 

and  held  its  sittings,  and  finally  adjourned  without  having  found 
any  bill  of  indictment  against  him,  etc.,  and  your  petitioner  is  held, 
detained  and  imprisoned  by  virtue  of  said  proceedings,  and  on  an 
order  of  said  commission,  to  await  the  execution  of  said  sentence. 

And  your  petitioner  claims  that  said  military  commission  had  no 
jurisdiction  or  authority,  legally,  to  try  and  sentence  him  in  the 
manner  and  form  above  stated. 

Wherefore,  to  be  relieved  of  said  unlawful  detention  and  impris- 
onment, your  petitioner  prays  that  a  writ  of  habeas  corpus,  to  be 
directed  to  the  said  A.  B.,  may  issue  in  this  behalf,  so  that  your 
petitioner  may  be  forthwith  brought  before  this  court  to  do,  submit 
to  and  receive  what  the  law  may  require. 

L.  P.  M. 

United  States  of  America, 


ss. 

DISTRICT  OF 

L.  P.  M.,  being  duly  sworn,  deposes  and  says  that  he  is  the  pe- 
titioner named  in  the  foregoing  petition  subscribed  by  him ;  that  he 
has  read  the  same  and  knows  the  contents  thereof,  and  that  the 
statements  therein  made  are  true  as  he  verily  believes. 

L.  P.  M. 
Subscribed  and  sworn  to  this  day  of  ,  18     . 

C.  D.,  United  States  commissioner. 


Form  No.  263. 

Writ  of  habeas  corpus. 

The  President  of  the  United  States  of  America  to  A.  B.,  marshal 
of,  etc.  [or  sheriff  or  other  person,  as  the  case  may  be]. 

We  command  you  that  the  body  of  L.  P.  M.,  by  you  detained 
and  imprisoned,  as  is  charged,  you  have  forthwith  before  our  circuit 
[or  district  or  supreme]  court  of,  etc.  [or  before  the  honorable  E. 
F.,  judge  of  the  court,  etc.],  at  ,  together  with  the 

cause  of  the  detention  of  the  said  L.  P.  M.,  to  undergo  and  receive 
what  our  said  court  [or  judge,  etc.]  shall  consider  concerning  him 
in  this  behalf:  and  have  you  then  and  there  this  writ. 

Witness  the  honorable  ,  Chief  Justice  of  the  Supreme 

Court  of  the  United  States,  this  day  of  ,  18     . 

E.  M.,  Clerk  of  the  Supreme 

[l.  s.]  [or  circuit]  Court  of  the  United  States. 


844         federal  pleading,  practice  and  procedure. 

Form  No.  264. 

Form  of  return  to  a  writ  of  habeas  corpus. 

To  the  Supreme  [or  circuit  or  district  court,  or  judge  or  justice,  as 
the  case  may  be]  Court  of  the  United  States  [or  to  the  honor- 
able G.  H.,  circuit  [or  district]  judge  of  the  circuit 
[or  of  the  district  of                 ]. 
A.  B.,  to  whom  the  within   [or  annexed]  writ  is  directed,  has 
now  here  before  the  court  [or  your  honor]  the  body  of  L.  P.  M. 
therein  named,  as  thereby  commanded.     And  I  certify  that  the 
cause  of  the  detention  of  the  said  L.  P.  M.  is  a  warrant  of  commit- 
ment [or  order  or  other  process]  directed  to  me,                   ,  a  copy 
of  which  is  hereto  annexed  marked  "Exhibit  A,"  and  made  a  part 
hereof,  issued  in  the  manner  and  under  the  circumstances  and  for 
the  purpose  set  forth  in  the  petition  of  the  said  L.  P.  M.,  herein. 

A.  B. 
Dated  this  day  of  ,  18     . 


■    Form  No.  265. 

Writ  of  habeas  corpus  ad  testificandum. 

The  President  of  the  United  States  of  America  to  the  marshal  of 
[or  as  the  case  may  be],   Greeting : 

You  are  hereby  commanded  that  you  have  the  body  of  , 

now  in  prison  [or  as  the  case  may  be]  under  your  custody,  as  it  is 
said,  under  safe  and  secure  conduct,  before,,  etc.  [as  in  the  sub- 
poena], to  testify  the  truth,  according  to  his  knowledge,  in  a  certain 
case  now  depending,  etc.  [as  in  the  subpoena],  and  immediately  after 
the  said  shall  then  and  there  have  given  his  testimony, 

that  you  return  him  to  the  said  prison  [or  as  the  case  may  be] 
under  safe  and  secure  conduct,  and  have  there  then  this  writ. 

Witness,  etc.  [as  in  the  capias]. 


FORMS  FOR  COURT  OF  CLAIMS. 


Form  No.  266. 

Petition ;   general  frame. 

In  the  Court  of  Claims,  October  ,  18     . 

A.  B.  ^ 

V.  vNo. 

The  United  States.  J 
To  the  honorable  justices  of  said  court: 

Your  petitioner,  A.  B.,  respectfully  shows  that  he  is  a  citizen  of 
the  United  States  [or  an  alien  and  citizen  of  some  foreign  country 
(naming  it)  which  accords  to  citizens  of  the  United  States  the 
right  to  prosecute  in  its  courts  claims  against  such  governments]. 
That  [here  set  forth  the  cause  of  action  according  to  the  usual 
practice  in  other  courts  ;  and  conclude  as  follows]  : 

Your  petitioner  therefore  demands  judgment  against  the  United 
States  for  the  sum  of  $ 

A.  B.,  by  G.  F.,  his  attorney. 

District  of  [or  state  of  ,  County  of  ],  ss : 

Personally  appeared  before  me,  A.  B.,  the  claimant  named  in 
the  foregoing  petition,  and  made  oath  that  the  matters  and  things 
set  forth  and  stated  in  his  said  petition  are  true  of  his  own  knowl- 
edge [or  to  the  best  of  his  knowledge  and  belief;  or,  that  the  mat- 
ters and  things  stated  in  his  said  petition  are  true  so  far  as  they 
are  stated  on  his  own  knowledge,  and  so  far  as  they  are  stated  on 
the  information  of  others,  he  believes  them  to  be  true]. 

A.  B.,  Complainant. 

Subscribed  and  sworn  to  this  day  of  , 

18      . 

[l.  s.]  E.  J.,  Commissioner. 

[Or,  K.  L.,  clerk  of  the  court  of  said  county ;  or  M.  N.,  notary 
public] 


846         federal  pleading,  practice  and  procedure. 

Form  No.  267. 

Petition  in  a  case  transmitted   by  the  head   of  any  department 
under  section  1064. 

A.  B.  ^ 

The  United  States.     J 

Your  petitioner,  A.  B.,  respectfully  shows  [here  set  forth  the 
claim  in  the  usual  manner,  the  presentation  of  the  claim  to  the 
department,  the  action  had  by  the  department,  etc.,  and  the  trans- 
mission therefrom,  as  provided  by  sections  1063  and  1064  of  the 
Revised  Statutes,  and  conclude  as  follows]  : 

Wherefore  he  claims  judgment  against  the  United  States  for  the 
sum  of  $ 

A.  B.,  by  G.  F.,  claimant's  attorney. 

[Add  usual  verification.] 


Form  No.  268. 

Another  and  fuller  form  of  a  petition. 

In  the  Court  of  Claims,  18     . 

A.  B.  ^ 

The  United  States.  } 
To  the  honorable  the  Court  of  Claims : 

The  claimant,  ,  respectfully  shows  to  this  honorable 

court  that  heretofore,  to  wit,  on  the  day  of  ,  in  the 

year  18  ,  he  entered  into  a  certain  express  contract  in  writing 
with  the  United  States  for  the  transportation  of  the  mail  between 

and  ,  both  in  the  state  of  ,  from  the 

day  of  ,  18     ,  to  the  day  of  ,  18     ,  at  and 

for  a  compensation  of  a  year  ;  a  certified  copy  of  which 

contract  is  annexed  to  this  petition  and  made  a  part  of  the  evidence 
in  this  case ;  that  the  claimant  carried  the  mail  under  his  said  con- 
tract and  in  accordance  therewith,  from  the  said  day  of  July, 
18  ,  down  to  and  including  the  day  of  ,  18,  when 
the  contract  was  annulled  and  taken  away  from  him  by  the  United 
States ;  that  he  has  received  no  payment  for  the  last  of 
the  period  aforesaid,  to  wit,  from  the  day  of  ,  18  , 
to  and  including  the  day  of  ,  18  ,  and  compensa- 
tion is  due  him  at  the  rate  aforesaid  for  the  said                 ,  amount- 


FORMS  FOR  COURT  OF  CLAIMS.  847 

ing  to  the  sum  of  ;  that  Congress,  on  the  3d  day  of  March, 

1877,  by  an  act  entitled  "  An  act  making  appropriations  for  sundry 
civil  expenses  of  the  government  for  the  fiscal  year  ending  June  30, 

1878,  and  for  other  purposes,"  made  an  appropriation  of  three 
hundred  and  seventy-five  thousand  dollars,  which  was  by  the  said 
act  directed  to  be  applied  to  the  payment  of  this  and  other  like 
claims ;  that  by  said  act  a  claim  accrued  to  the  claimant  to  be  paid 
the  amount  of  ;  that  the  Secretary  of  the  Treasury  and 
the  Sixth  Auditor  thereof  refused  and  neglected  to  distribute  any 
portion  of  the  said  appropriation,  but  covered  the  whole  of  the 
same  into  the  treasury  of  the  United  States ;  that  this  claim  has 
not  been  paid  in  whole  or  in  part  by  the  Confederate  States  govern- 
ment, or  by  any  government  or  pretended  government  of  any  state, 
or  by  the  defendants,  or  by  any  government,  corporation  or  person 
whatsoever ;  that  no  action  has  been  had  on  this  claim  in  Congress 
or  by  any  of  the  departments ;  that  the  claimant  is  the  sole  owner 
of  this  claim  and  the  only  person  interested  therein  ;  that  no  assign- 
ment or  transfer  of  this  claim,  or  of  any  part  thereof  or  interest 
therein,  has  been  made;  that  the  claimant  is  justly  entitled  to  the 
amount  herein  claimed  from  the  United  States,  after  allowing  all 
just  credits  and  ofi'-sets ;  that  the  claimant  is  a  citizen  of  the 
United  States  [and  has  at  all  times  borne  true  allegiance  to  the 
government  thereof,  and  has  not  in  any  way  voluntarily  aided, 
abetted  or  given  encouragement  to  rebellion  against  the  said  gov- 
ernment] ;  ^  and  that  the  claimant  believes  the  facts  as  stated  in 
this  petition  to  be  true.  And  the  claimant  demands  judgment 
for 

,  Attorneys  for  claimant. 
State  of  ,         ] 

County.      J 
,  being  duly  sworn,  deposes  and  says,  I  am  the  claim- 
ant in  this  case.     I  have  heard  the  above  petition  read,  and  the 
facts  therein  stated  are  true  to  the  best  of  my  knowledge  and 
belief,  so  help  me  God. 

A.  B. 
Subscribed  and  sworn  to  before  me  this         day  of  ,  18     . 

[seal.]  J.  W.  West,  Clerk  of  court. 

^  The  clause  in  brackets  does  not     tured  and  Abandoned  Property  Act. 
appear  to  be  essential,  by  the  decision     !See  mUe,  §  429. 
ot'  the  Supreme  Court  under  the  Cap- 


848  FEDERAL   PLEADING,   PRACTICE   AND    PROCEDURE. 

EXHIBIT    TO    claimant's    PETITION. 

United  States  of  America. 

Post-Office  Department, 

Washington,  D.  C,  ,  18     . 

I,  Richard  A.  Elmer,  acting  Postmaster  General  of  the  United 
States  of  America,  certify  that  the  annexed  is  a  true  copy  of  the 
original  contract  now  on  the  files  of  this  department. 

In  testimony  whereof  I  have  hereto  set  my  hand  and  caused  the 
seal  of  the  Post-OfEce  Department  to  be  affixed,  at  the  city  of 
Washington,  the  day  and  year  above  written, 

[l.  s.]  .  Richard  A.  Elmer,  Acting  Postmaster  General. 

No.  .     $  per  annum. 

This  article  of  contract,  made  the  day  of       *  ,  in 

the  year  one  thousand  eight  hundred  and  ,  between  the 

United  States  (acting  in  this  behalf  by  their  Postmaster  General) 
and  , 

Witnesseth  that  whereas  has  been  accepted  according  to 

law  as  contractor  for  transporting  the  mail  on  route  No. 
from  ,  at  dollars  per  year  for  and  during  the  term 

commencing  the  day  of  ,  in  the  year  one  thousand 

eight  hundred  and  ,  and  ending  with  the  thirtieth  of  June, 

in  the  year  one  thousand  eight  hundred  and  sixty-  .     Now, 

therefore,  the  said  ,  contractor,  and  ,  his  sureties, 

do  jointly  and  severally  undertake,  covenant   and  agree  with  the 
United  States,  and  do  bind  themselves : 

1st.  To  carry  said  mail  within  the  times  fixed  in  the  annexed 
schedule  of  departures  and  arrivals,  except  that  when  more  than 
seven  minutes  are  taken  for  opening  and  closing  the  mails  at  any 
office,  the  surplus  time  so  taken  is  to  be  allowed  in  addition  to  what 
is  given  in  the  schedule ;  and  so  carry  until  said  schedule  is  altered 
by  the  authority  of  the  Postmaster  General  of  the  United  States, 
as  hereinafter  provided,  and  then  to  carry  according  to  said  altered 
schedule.  2d.  To  carry  said  mail  in  a  safe  and  secure  manner, 
free  from  wet  or  other  injury,  under  a  sufficient  oilcloth  or  bear 
skin.  3d.  To  take  the  mail  and  every  part  of  it  from,  and  deliver 
it  and  every  part  of  it  at,  each  post-office  on  the  route,  or  that  may 
hereafter  be  established  on  the  route,  and  into  the  post-office  at  each 


FORMS  FOR  COURT  OF  CLAIMS.  849 

end  of  the  route,  and  into  the  post-office  at  the  place  at  -which  the 
carrier  stops  at  night,  if  one  is  there  kept ;  and  if  no  office  is  there 
kept,  to  lock  it  up  in  some  secure  place  at  the  risk  of  the  con- 
tractor. 

They  also  undertake,  covenant  and  agree  with  the  United  States, 
and  do  bind  themselves  jointly  and  severally  as  aforesaid,  to  be 
answerable  for  the  person  to  whom  the  said  contractor  shall  commit 
the  care  and  transportation  of  the  mail,  and  accountable  to  the 
United  States  for  any  damages  which  may  be  sustained  by  the 
United  States  through  his  unfaithfulness  or  want  of  care ;  and  that 
the  said  contractor  will  discharge  any  carrier  of  said  mail  whenever 
required  to  do  so  by  the  Postmaster  General ;  also,  that  he  will  not 
transmit  by  himself  or  his  agent,  or  be  concerned  in  transmitting, 
commercial  intelligence  more  rapidly  than  by  mail ;  and  that  he 
will  not  carry  out  of  the  mail  letters  or  newspapers  which  should 
go  by  post. 

They  further  undertake,  covenant  and  agree  with  the  United 
States  that  the  said  contractor  will  collect  quarterly,  if  required  by 
the  Postmaster  General,  of  postmasters  on  said  route,  the  balances 
due  from  them  to  the  General  Post-Office,  and  faithfully  render  an 
account  thereof  to  the  Postmaster  General  in  the  settlement  of 
quarterly  accounts,  and  will  pay  over  to  the  General  Post-Office  all 
balances  remaining  in  his  hands. 

For  which  services,  when  performed,  the  said  ,  con- 

tractor, is  to  be  paid  by  the  United  States  the  sum  of 
dollars  a  year,  to  wit :  quarterly  in  the  months  of  May,  August, 
November  and  February,  through  the  postmasters  on  the  route,  or 
otherwise,  at  the  option  of  the  Postmaster  General  of  the  United 
States;  said  pay  to  be  subject,  however,  to  be  reduced  or  discon- 
tinued by  the  Postmaster  General,  as  hereinafter  stipulated,  or  to 
be  suspended  in  case  of  delinquency. 

It  is  hereby  stipulated  and  agreed,  by  the  said  contractor  and  his 
sureties,  that  the  Postmaster  General  may  alter  the  contract,  and 
alter  the  schedule,  he  allowing  a  pro  rata  increase  of  compensation 
within  the  restrictions  imposed  by  law  for  the  additional  service  re- 
quired, or  for  the  increased  speed,  if  the  employment  of  additional 
stock  or  carriers  is  rendered  necessary ;  but  the  contractor  may,  in 
case  of  increased  expedition,  relinquish  the  contract  on  timely 
notice  if  he  prefer  it  to  the  change ;  also,  that  the  Postmaster  Gen- 
54 


850  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

eral  may  discontinue  or  curtail  the  service  in  whole  or  in  part,  in 
order  to  place  on  the  route  a  greater  degree  of  service,  or  -when- 
ever the  public  interests  require  such  discontinuance  or  curtailment 
for  any  other  cause,  he  allowing  one  month's  extra  pay  on  the 
amount  of  service  dispensed  with. 

It  is  hereby  also  stipulated  and  agreed,  by  the  said  contractor 
and  his  sureties,  that  in  all  cases  there  is  to  be  a  forfeiture  of  the 
pay  of  a  trip  when  the  trip  is  not  run ;  and  of  not  more  than  three 
times  the  pay  of  tha  trip  when  the  trip  is  not  run  and  no  suflScient 
excuse  for  the  failure  is  furnished ;  a  forfeiture  of  at  least  one- 
fourth  part  of  it  when  the  running  is  so  far  behind  time  as  to  lose 
connection  with  a  depending  mail ;  and  that  these  forfeitures  may 
be  increased  into  penalties  of  higher  amount  according  to  the  na- 
ture or  frequency  of  the  failure  and  the  importance  of  the  mail; 
also  that  fines  may  be  imposed  upon  the  contractor  unless  the  de- 
linquency be  satisfactorily  explained  to  the  Postmaster  General  in 
due  time,  for  failing  to  take  from  or  deliver  at  a  post-office  the  mail 
or  any  part  of  it ;  for  suflfering  it  to  be  wet,  injured,  lost  or  de- 
stroyed;  for  carrying -it  in  a  place  or  manner  that  exposes  it  to 
depredation,  loss  or  injury,  by  being  wet  or  otherwise ;  for  entrust- 
ing the  mail  to  a  carrier  under  sixteen  years  of  age ;  or  for  not 
arriving  at  the  time  set  in  the  schedule.  And  for  setting  up  or 
running  an  express  to  transmit  letters  or  commercial  intelligence  in 
advance  of  the  mail,  a  penalty  may  be  exacted  of  the  contractor 
equal  to  a  quarter's  pay;  but  in  all  other  cases  no  fine  shall  exceed 
three  times  the  price  of  the  trip. 

And  it  is  hereby  further  stipulated  and  agreed,  by  the  said  con- 
tractor and  his  sureties,  that  the  Postmaster  General  may  annul  the 
contract  for  repeated  failures ;  for  violating  the  post-office  laws ;  for 
disobeying  the  instructions  of  the  department ;  for  refusing  to  dis- 
charge a  carrier  when  required  by  the  department;  for  assigning 
the  contract  without  the  consent  of  the  Postmaster  General ;  for 
setting  up  or  running  an  express  as  aforesaid ;  or  whenever  the 
contractor  shall  become  a  postmaster,  assistant  postmaster  or  mem- 
ber of  Congress  ;  and  this  contract  shall,  in  all  its  parts,  be  subject 
to  the  terms  and  requisitions  of  an  act  of  Congress  passed  on  the 
twenty-first  day  of  April,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  eight,  entitled  "  An  act  concerning  public  con- 
tracts." 


FORMS  FOR  COURT  OF  CLAIMS.  851 

In  witness  whereof  the  said  Postmaster  General  has  caused  the 
seal  of  the  Post- Office  Department  to  be  hereto  affixed,  and  has  at- 
tested the  same  by  his  signature,  and  the  said  contractor  and  his 
sureties  have  hereunto  set  their  hands  and  seals  the  day  and  year 
set  opposite  to  their  names,  respectively. 

Horatio  King,  Acting  Postmaster  General. 

Signed,  sealed  and  delivered  by  the  Postmaster  General  in  the 
presence  of 

R.  T.  Spotswood. 

And  by  the  other  parties  hereto  in  the  presence  of 

I  hereby  certify  that  I  am  well  acquainted  with  and 

and  the  condition  of  their  property,  and  that  after  full 
investigation  and  inquiry  I  am  well  satisfied  that  they  are  good  and 
sufficient  sureties  for  the  amount  in  the  foregoing  contract. 

,  Postmaster  at 

THE    SCHEDULE    OF   DEPARTURES   AND    ARRIVALS. 

Leave 
Arrive  at 
Leave 
Arrive  at 


Form  No.  269. 

Notice  by  the  clerk. 

A.  B.  -J 

V.  V  No. 

The  District  of  Columbia.      J 

Clerk's  Office, 
Washington,  D.  C,  ,  18 

To  ,  attorney  for  claimant. 

Sir : — Take  notice  that  in  the  above  cause  there  has  been  filed 
this  day  on  behalf  of  the  defendant,  ,  in  this  office,  a 

plea  of  the  Statute  of  Limitation  to  the  petition  of  the  claimant. 
Respectfully,  ,  Clerk  Court  of  Claims. 


852         federal  pleading,  practice  and  procedure. 

Form  No.  270. 

*  Notice  by  the  clerk  of  papers  filed. 

A.  B.  ^ 

V.  V  No. 

The  United  States.        J 

Clerk's  Office, 
Washington,  D.  C,  ,  18 

To  ,  Attorney  General  of  U.  S. 

Sir : — Take  notice  that  in  the  above  cause  there  has  been  filed 
this  day  on  behalf  of  the  claimant,  ,  in  this  office,  a  peti- 

tion claiming  of  the  United  States  $  ,  on  a  contract. 

Respectfully,  ,  Clerk  Court  of  Claims. 


Form  No.  271. 

Plea  of  limitation. 

A.  B.  ^ 

V.  VNo. 

The  United  States.        J 
Now  come  the  defendants,  by  their  Attorney  General,  and  say 
that  the  claimant      herein  should  not  further  have  or  maintain 
suit  against  the  defendants,  for  the  reason  that  the  peti- 
tion of  the  claimant     was  not  filed  in  this  court  nor  transmitted  to 
it  within  six  years  after  the  claim  therein  set  forth  first  accrued. 
Wherefore  the  defendants  ask  judgment,  etc. 

,  Assistant  Attorney  General. 


Form  No.  272. 

Traverse. 

A.  B.  1 

V.  V  No. 

The  United  States.  J 
And  now  comes  the  Attorney  General  on  behalf  of  the  United 
States,  and  makes  answer  to  the  petition  of  the  claimant  herein  ; 
and  not  confessing  the  same  or  any  part  thereof,  denies  each  and 
every  the  allegations  therein  contained,  and  calls  for  strict  proof  of 
the  same. 


FORMS   FOR   COURT   OF   CLAIMS.  853 

And  as  to  so  mucli  of  the  said  petition  as  sets  forth  and  avers 
that  the  United  States  are  indebted  to  the  said  claimant  in  the  sum 
of  $  ,  says  that  they  are  not  indebted  to  the  said  claimant 

in  the  said  sum  of  money,  nor  any  part  thereof. 

And  as  to  so  much  of  the  said  petition  as  avers  that  the  said 
claimant  at  all  times  borne  true  faith  and  allegiance  to 

the  government  of  the  United  States,  and  never  voluntarily  aided, 
abetted  or  given  encouragement  to  rebellion  against  the  said  gov- 
ernment, denies  the  said  allegation. 

,  Assistant  Attorney  General. 


Form  No.  273. 

Subpoena  for  witnesses. 

To 

You  are  hereby  commanded  to  appear  before  , 

commissioner,  appointed  by  this  court  to  take  deposi- 
tions, on  the  day  of  ,  A.  D.  18  ,  at  o'clock 
in  the  noon,  at  his  office  in  the  of  ,  in  the 
county  of  and  state  of  ,  then  and  there  to  testify 
in  the  case  of  against  the  United  States,  now  pending  in 
this  court. 

Fail  not  of  appearance  at  your  peril. 

By  order  of  the  Court  of  Claims. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  affixed  the 
seal  of  said  court  at  Washington,  this  day  of  , 

A.  D.  18      . 

,  Clerk  of  the  Court  of  Claims. 


Form  No.  274. 

Instructions  for  taking  depositions  to  be  used  in  the  Court  of 

Claims. 

Let  the  officer  begin  with  the  following  caption : 
Depositions  of  a  witness  [or  witnesses]  produced,  sworn  and  ex- 
amined at  the  hour  of  o'clock     M.,  on  the  day  of 
,  18     ,  at             ,  before  me,  the  undersigned,  a  , 
in  a  certain  cause  now  pending  in  the  Court  of  Claims,  wherein 
claimant  and  the  United  States  are  defendants ;  when 
were  present             ,  counsel  on  behalf  of  the  claimant,  and             , 
counsel  on  behalf  of  the  defendants. 


854  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

,  having  been  produced  as  a  witness  on  behalf  of  the 
,  was  by  me  sworn  [or  aflBrmed],  before  any  question  was 
put  to  him,  to  tell  the  truth,  the  whole  truth  and  nothing  but 
the  truth  relative  to  the  said  cause ;  and  thereupon  deposed  and 
said  that  his  name  is  ;  that  his  occupation  is  that  of  ; 

that  he  is  years  of  age ;  that  his  place  of  residence  is 

;  that  he  has  no  interest,  direct  or  indirect,  in  the  claim 
which  is  the  subject  of  inquiry  in  said  cause  (or  if  interested,  let 
him  state  the  nature  and  extent  of  his  interest) ;  and  that  he  is  not 
related  to  the  claimant  (or,  if  he  be  related  to  the  claimant,  let  him 
state  his  relationship). 

And  thereupon  the  said  was  examined  by  the  counsel  for 

the  ,  and  in  answer  to  interrogatories  testified  as  follows : 

1.  Question.   (Record  the  question.) 

Answer.  (Record  the  answer  as  nearly  as  may  be  in  the  witness' 
own  words.) 

(Let  each  succeeding  question  of  the  direct  examination  be  num- 
bered; and  at  the  close  of  that  examination  proceed  as  follows:) 

The  said  witness  was  then  cross-examined  by  the  counsel  for 
the  ,  and  in  answer  to  interrogatories  testified  as  follows : 

1.  Cross-interrogatory.  (Record  it.) 

Answer.  (Record  it.) 

(Let  each  succeeding  question  of  the  cross-examination  be  num- 
bered.) 

(On  re-direct  or  re-cross  examination  record  the  questions  and 
answers  in  like  manner.) 

If  more  than  one  witness  is  examined,  let  the  following  caption  of 
each  deposition  be  made  : 

At  the  same  place,  on  the  same  day  (or  if  an  adjournment  has 
taken  place,  write  on  the  day  of  ,18     ),  in  the 

presence  of  the  same  counsel  of  both  parties,  ,  a  witness 

on  behalf  of  the  ,  was  produced,  and  having  been  by  me  in 

like  manner  sworn  (or  affirmed),  deposed  and  said  that  his  name  is, 
etc.  (as  prescribed  in  the  case  of  the  first  witness). 

And  thereupon  the  said  was  examined  by  the  counsel  for 

the  ,  and  in  answer  to  interrogatories  testified  as  follows : 

(See  directions  above.) 

In  case  of  adjournment  before  closing  a  deposition,  record  the 
proceeding  as  follows  : 


FORMS  FOR  COURT  OF  CLAIMS.  855 

At  this  point  the  taking  of  this  deposition  was,  by  consent  of  the 
parties  (or  as  the  case  may  be),  adjourned  to  at 

o'clock         M.,  at  the  same  place. 

On  resumption  of  the  deposition,  record  the  proceeding  as  follows: 

Deposition  of  resumed  according  to  adjournment  at  the 

time  and  place  fixed,  the  same  parties  present  as  aforesaid  [or  as 
the  case  may  be]. 

In  case  of  adjournment  at  the  close  of  a  deposition  before  closing 
all  the  testimony,  record  the  proceeding  as  follows  : 

Thereupon  the  proceeding  herein  was,  by  consent  of  the  parties 
[or  as  the  case  may  be],  adjourned  to  at  ^       o'clock 

M.,  at  the  same  place. 

On  resumption  of  the  proceeding,  record  the  same  as  follows : 

The  proceeding  herein  resumed  according  to  adjournment  at  the 
time  and  place  fixed,  the  same  parties  present  as  aforesaid  [or  as 
the  case  may  be]. 

At  the  close  of  the  examination  by  the  respective  counsel,  record 
the  final  statement  of  the  witness  as  follows  : 

The  examination  by  counsel  being  concluded,  the  witness,  in  com- 
pliande  with  the  rule  of  the  court  requiring  him  to  state  whether 
he  knows  of  any  other  matter  relative  to  the  claim  in  question,  and 
if  he  do  state  it,  says : 

(Signature  of  witness.) 

FINAL    CERTIFICATE    WHEN    ONLY    ONE    WITNESS   IS    EXAMINED. 

At  the  close  of  the  deposition,  let  the  officer  certify  as  follows : 
I,  ,  a  commissioner  of  the  Court  of  Claims,  in  and  for 

the  state  [or  territory  or  district]  of  [or  whatever  else 

may  be  his  office],  certify  that  at  the  time  [or  times  where  there  have 
been  adjournments]  and  place  aforesaid,  ,  a  witness  on  be- 

half of  the  in  the  above-entitled  cause,  was  by  me  sworn 

[or  affirmed]  before  any  question  was  put  to  ,  to  tell  the  truth, 

the  whole  truth  and  nothing  but  the  truth  relative  to  the  said  cause; 
and  that  answers  were  taken  down  in  my  presence,  and 

deposition  as  above  set  forth  was  read  over  to  and  signed 
by  before  me  at  the  time  and  place  aforesaid. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  official  seal 
(if  he  have  one)  this  day  of  ,  18     . 


856  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

FINAL    CERTIFICATE   WHERE    TWO    OR    MORE    WITNESSES   ARE    EX- 
AMINED. 

I,  ,  a  commissioner  of  the  Court  of  Claims,  in  and  for  the 

state  [or  territory  or  district]  of  [or  whatever  else  his 

office  may  be],  certify  that  at  the  time  [or  times  where  there  have 
been  adjournments]  and  place  aforesaid,  ,  witnesses  on  be- 

half of  the  in  the  ^bove-entitled  cause,  were  each  by  me 

sworn  [or  affirmed]  before  any  question  was  put  to  ,  to  tell  the 
truth,  the  whole  truth  and  nothing  but  the  truth  relative  to  the 
said  cause ;  and  that  the  answers  of  each  of  said  witnesses  were 
taken  down  in  my  presence,  and  the  deposition  of  each  of  them,  as 
above  set  forth,  was  read  over  to  and  signed  by  before  me 

at  the  time  [or  times]  and  place  as  aforesaid. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  official  seal 
(if  he  have  one)  this  day  of  ,  18     . 

EXTRACT    FROM    RULES    OF   THE    COURT. 

Article  VI. — Sec.  2.  Unless  the  court  order  a  witness  to  testify 
orally  on  the  trial,  the  evidence  of  witnesses  must  be  by  deposition, 
taken  either  before  a  commissioner  of  the  court  or  a  judge  of  a  court 
of  the  United  States,  or  a  judge  of  a  court  of  record  in  a  state  or 
territory  of  the  United  States,  or  a  commissioner  appointed  by  a 
circuit  court  of  the  United  States,  or  a  notary  public. 

Article  VIII. — Sec.  3.  Where  a  deposition  is  taken  by  oral 
examination,  each  question  propounded  to  the  witness  must  be  re- 
corded, and  his  answers  must  be  taken  down,  as  nearly  as  may  be, 
in  his  own  words. 

Sec.  4.  No  general  objection  to  any  question  shall  be  noticed  by 
the  officer ;  but  where  an  objection  is  made  on  specifically  stated 
grounds,  the  officer  shall  record  the  same  in  direct  connection  with 
the  question  objected  to. 

Sec.  5.  When  depositions  are  taken  on  notice,  as  provided  in 
section  1  of  this  article,  if  both  parties  are  present  or  represented 
at  the  time  and  place  specified  in  the  notice,  either  party  may, 
after  the  examination  of  the  witnesses  produced  under  the  notice, 
be  entitled  to  produce  and  examine  other  witnesses ;  but  in  order 
thereto  one  day's  notice  must  be  given  to  the  adverse  party,  or  his 
attorney,  there  present. 


FORMS  FOR  COURT  OF  CLAIMS.  857 

Article  IX. —  Sec.  1.  Witnesses  must  be  sworn  or  affirmed, 
before  any  questions  are  put  to  them,  to  tell  the  truth,  the  whole 
truth  and  nothing  but  the  truth,  relative  to  the  cause  in  which  they 
are  to  testify;  and  each  witness  shall  then  state  his  name,  his  oc- 
cupation, his  age  if  under  twenty-one  years,  his  place  of  residence; 
whether  he  has  any,  and  if  any  what,  interest,  direct  or  indirect,  in 
the  claim  which  is  the  subject  of  inquiry  ;  and  whether,  and  in  what 
degree,  he  is  related  to  the  claimant.  At  the  conclusion  of  the 
deposition  the  witness  shall  state  whether  he  knows  of  any  other 
matter  relative  to  the  claim  in  question ;  and  if  he  do,  he  shall 
state  it.  The  testimony  of  the  witness  when  completed  shall  be  read 
over  to  him,  and  be  signed  by  him  in  the  presence  of  the  officer. 

Sec.  2.  The  officer  should  so  connect  the  sheets  of  the  deposition 
that  they  cannot  be  tampered  with,  and  should  return  them  sealed 
together.  He  should  sign,  and  make  the  witness  sign,  each  sheet ; 
and  generally  he  should  spare  no  pains  to  return  to  the  court  the 
exact  evidence  he  has  taken.  All  exhibits  should  be  carefully 
marked  so  as  to  be  capable  of  immediate  identification,  and,  when 
practicable,  should  be  attached  to  the  deposition  under  seal. 

Sec.  3.  The  officer  must  state,  in  the  caption  of  the  deposition, 
the  cause  in  which  it  was  taken,  the  place  and  date  of  taking,  the 
name  of  the  witness,  the  party  by  whom  called,  and  the  names  of 
the  parties  and  counsel  present.  And  in  the  body  of  the  deposi- 
tion must  also  be  shown  by  whouj  the  witness  was  examined  and 
cross-examined. 

Sec.  4.  In  his  return  the  officer  must  show  that  the  witness  was 
properly  sworn  or  affirmed,  and  that  the  answers  were  taken  down 
in  his  presence,  and  read  over  to  and  signed  by  the  witness. 

Sec.  5.  The  officer  must  inclose  the  commission,  depositions  and 
exhibits  in  a  packet,  under  his  seal,  and  direct  the  same  to  the  clerk 
of  the  court  at  Washington,  and  deposit  the  packet  in  the  post- 
office,  or  in  an  express  office,  or  he  may  transmit  the  same  by  a 
messenger,  whose  name  shall  be  by  him  indorsed  on  the  packet. 

Sec.  6.  If  the  officer's  fees  be  not  paid  at  the  time  of  taking  the 
deposition,  he  should  indorse  on  the  outside  of  the  packet  the  gross 
amount  of  his  fees  and  disbursements,  and  inclose  inside  a  detailed 
statement  thereof.  The  packet  must  not  be  opened  until  the  party 
for  whom  the  depositions  were  taken  deposits  with  the  clerk  the 
amount  indorsed  thereon.     The  clerk  will  then  open  the  packet, 


858  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

and  tax  the  officer's  charges  at  the  rates  hereinafter  provided,  and 
will  immediately  transmit  to  him  the  amount  taxed,  returning  the 
overplus,  if  any,  to  the  party.  The  money  will  be  transmitted  by 
draft  or  registered  letter,  and  the  clerk  will  retain  his  vouchers 
therefor. 

See.  7.  The  fees  shall  be  three  dollars  a  day  for  attending  to  take 
the  depositions,  and  twenty  cents  a  folio  of  one  hundred  words  for 
taking  and  returning  it ;  but  this  per  diem  allowance  is  limited  to 
one  day  for  a  deposition  or  series  of  depositions  taken  in  the  same 
case.  Short-hand  reporters,  acting  as  special  commissioners,  will 
receive,  in  addition  to  these  fees,  ten  cents  a  folio  for  writing  out 
the  deposition  from  their  notes. 

Sec.  8.  Any  permanent  commissioner  charging  in  excess  of  the 
prescribed  fees,  except  under  a  previous  written  agreement  with  the 
parties,  will  be  deemed  guilty  of  improper  and  illegal  conduct,  and 
his  commission  will  be  revoked. 


Form  No.  275. 

Findings  of  fact,  conclusion  of  law,  opinion  and  judgment  thereon. 

Swift  &  Courtney  &  Beecher  Company 

V. 

The  United  States.^ 

FINDING    OF   FACT. 

This  case  having  been  heard  before  the  Court  of  Claims,  the 
court,  upon  the  evidence,  finds  the  facts  to  be  as  follows : 

I.  The  claimant  is  a  corporation  organized  under  the  laws  of  the 
state  of  Connecticut  April  20,  1870,  and  from  May  6,  1870,  to 
December  20,  1878,  and  subsequently,  was  a  manufacturer  of  fric- 
tion matches,  furnishing,  without  expense  to  the  United  States,  in 
suitable  form,  approved  by  the  Commissioner  of  Internal  Revenue, 
its  own  dies  and  designs  for  stamps  to  be  used  thereon. 

II.  On  the  17th  of  May,  1870,  said  company  furnished  to  the 
Commissioner,  as  security  for  the  payment  for  stamps  to  be  deliv- 

^  For  the  purpose  of  illustrating  before  the  court,  after  its  submissioa 
the  practice,  we  copy  this  actual  case     upon  the  merits. 


FORMS  FOR  COURT  OF  CLAIMS.  859 

ered  by  him  to  said  company  on  credit,  its  own  bond,  with  sureties, 
in  the  penal  sum  of  $30,000,  payable  to  the  United  States  upon  the 
following  conditions  therein  contained : 

The  condition  of  the  foregoing  obligation  is  such  that  whereas  the  said 
Swift  &  Courtney  &  Beecher  Company  is  a  manufacturer  of  friction  matches, 
cigar-lights  or  wax  tapers;  and  whereas,  under  the  provisions  of  the  161st 
section  of  an  act  entitled  "  An  act  to  provide  internal  revenue  to  the  govern- 
ment to  pay  interest  on  the  public  debt,  and  for  other  purposes,"  approved 
June  30, 1864,  the  Commissioner  of  Internal  Revenue  is  authorized  from  time 
to  time  to  furnish,  supply  and  deliver  to  any  manufacturer  of  friction  or  other 
matches,  cigar-lights  or  wax  tapers  a  suitable  quantity  of  adhesive  or  other 
stamps  such  as  may  be  prescribed  for  use  in  such  cases  without  prepayment 
therefor,  on  a  credit  not  exceeding  sixty  days,  requiring  in  advance  such 
security  as  he  may  judge  necessary  to  secure  payment  therefor  to  the  treas- 
ury of  the  United  States  within  the  time  prescribed  for  such  payment ;  and 
whereas  adhesive  stamps  have  been  delivered  or  hereafter  may  be  delivered 
to  said  Swift  &  Courtney  &  Beecher  Company  by  virtue  of  said  authority : 

Now,  therefore,  if  the  said  Swift  &  Coui-tney  &  Beecher  Company  shall,  on 
or  before  the  tenth  day  of  each  and  every  month,  make  a  statement  of  their 
account  upon  Form  55^  of  the  Internal  Revenue  Bureau,  and  upon  such  other 
form  or  forms  as  may  hereafter  be  added  thereto  or  substituted  therefor, 
showing  the  balance  due  at  the  commencement  of  the  month,  the  amount  of 
stamps  received,  and  the  amount  of  money  remitted  by  them  during  the 
month,  and  the  balance  due  from  the  Swift  &  Courtney  &  Beecher  Company 
at  the  close  of  the  month  next  preceding  .  .  .  and  shall  do  and  perform  all 
other  acts  of  them  required  to  be  done  in  the  premises,  according  to  law  and 
regulations  ;  shall  well  and  truly  pay  or  cause  to  be  paid  to  the  Treasurer  of 
the  United  States,  for  the  use  of  the  United  States,  all  and  every  such  sum  or 
sums  of  money  as  the  said  Swift  &  Courtney  &  Beecher  Company  may  owe  to 
the  United  States  for  adhesive  stamps  which  have  been  or  shall  be  delivered 
to  them,  or  which  have  been  or  shall  be  forwarded  to  them  according  to  their 
request  or  order,  within  the  time  prescribed  for  payment  for  the  same  accord- 
ing to  law,  and  shall  and  will  pay  or  cause  to  be  paid  to  the  said  Treasurer, 
for  the  use  aforesaid,  each  and  every  such  sum  of  money  as  shall  become  due 
or  payable  to  the  United  States,  at  the  time  and  on  the  days  each  sum  shall 
respectively  become  due  and  payable,  then  the  above  obligation  to  be  void 
and  of  no  effect. 

Similar  bonds  were  furnished  May  24,  1870,  for  $30,000 ;  Feb- 
ruary 29, 1872,  for  $30,000  ;  and  December  14, 1872,  for  $150,000. 

III.  The  uniform  course  of  business  between  the  parties,  in  rela- 
tion to  ordering,  forwarding,  making  returns,  accounting  and  paying 
for  stamps,  was  as  hereinafter  set  forth  : 

1.  Whenever  stamps  were  desired,  the  claimant  sent  an  order  in 
the  following  form : 


860  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

Office  of  the  Swift  &  Courtney  &  Beecher  Co., 
Match  Manufacturers, 

[Date.] 
Com.  of  Inter.  Rev.,  Washington  : 

Dear  Sir  :  Please  forward  us  by  express  $3000  worth  [or  whatever  quantity 
was  required]  of  match  stamps  S.  &  C.  Ic,  and  oblige, 
Yours  truly. 

The  Swift  &  Courtney  &  Beecher  Co. 

L.  S.  Benton,  Att'y. 

2.  The  Commissioner  in  reply  forwarded  stamps  of  the  face  value 
of  the  amount  of,  and  ten  per  cent,  commission  on,  the  money  speci- 
fied in  the  order,  accompanied  by  a  letter  in  the  following  form, 
except  the  words  inclosed  in  brackets,  which  are  inserted  here  as 
explanatory  of  the  method  of  computing  commissions ;  taking  an 
order  of  $3000  as  a  specimen : 

(Office  Form  113 — Stamp  Division.) 
Invoice  of  documentary  and  proprietary  stamps. 

Treasury  Department, 
Office  of  Internal  Revenue, 

Washington,  [date.] 
Swift  &  Courtney  &  Beecher  Co.  : 

Gentlemen  :  I  have  this  day  forwarded  to  you  by  express  United  States 
internal-revenue  private-die  stamps  of  the  face  value  of  thirty-three  hundred 
dollars  [or  a  sum  equal  to  the  amount  of,  and  ten  per  cent,  commission  on, 
the  amount  of  money  specified  in  the  order],  in  satisfaction  of  Order  No. 

When  the  stamps  come  to  hand  they  should  be  carefully  counted  in  the 
presence  of  a  disinterested  witness,  and  if  the  invoice  is  found  correct  you 
will  date,  sign  and  transmit  to  this  office  by  first  mail  the  inclosed  receipt. 

If  the  stamps  fail  to  come  to  hand  within  a  reasonable  time,  please  notify 
this  ofiice. 

Very  respectfully, 

,  Commissioner. 

,  Chief  of  Stamp  Division. 

3.  The  receipt  referred  to  in  such  letter  was  prepared  by  the 
Commissioner,  forwarded  to  the  claimant  corporation,  and  by  it 
signed  and  returned  to  the  office  of  the  Internal  Revenue  Bureau, 
and  was  in  the  following  form  : 

(Office  Form  No.  44 — Stamp  Division.) 

Receipt  for  documentary  and  proprietary  stamps. 

[Date.] 

Sir  :  Your  letter  of  the  has  been  received.     I  am  also  in  receipt  of 

the  United  States  internal-revenue  stamps  therein  referred  to,  amounting  to 
thirty-three  hundred  dollars  [or  a  sum  equal  to  the  amount  of,  and  ten  per 


FORMS  FOR  COURT  OF  CLAIMS.  861 

cent,  commission  on,  the  amount  of  money  specified  in  the  order]  in  satisfac- 
tion of  my  order  under  date  of 
I  am,  very  respectfully, 

The  Swift  &  Courtney  &  Beecher  Co. 
L.  S.  Benton,  Att'y. 
To  Commissioner  of  Internal  Revenue, 

Washington,  D.  C. : 
No.      .        3000. 

Note. — This  receipt  should  be  signed  and  forwarded  to  Washington  by  first 
mail.  The  signature  should  be  legally  and  technically  correct,  so  as  to  bind 
the  person,  firm  or  corporation  ordering  and  receiving  the  stamps. 

4.  The  claimant  throughout  availed  itself  of  the  credit  provided 
for  by  statute.  No  order  for  stamps  was  ever  for  a  less  quantity 
than  $500  of  face  value.  Remittances  of  money  in  payment  were 
made  in  various  sums  from  time  to  time  within  the  sixty  days  credit. 
Each  remittance  was  for  a  sum  not  less  than  $500,  did  not  specify 
and  correspond  to  any  one  particular  and  specified  order  for  stamps, 
but  did  apply  to  orders  the  times  for  payment  of  which  were  near 
maturity. 

The  remittances  were  so  made  that  all  stamps  received  were 
thus  paid  for  at  or  before  the  expiration  of  term  of  credit  allowed. 

The  claimant  was  always  indebted  to  the  defendants  for  stamps 
received  within  the  past  sixty  days,  the  time  for  payment  for  which 
had  not  matured,  but  was  never  indebted  for  any  stamps  received 
more  than  sixty  days  previously. 

5.  Remittances  of  money  and  acknowledgments  of  receipt  thereof 
were  made  in  the  following  forms  : 

The  Swift  &  Courtney  &  Beecher  Co., 

[Date.] 
lion.  Green  B.  Raum, 

Com.  Inter.  Revenue,  Washington,  D.  C, : 
Dear  Sir  :  Enclosed  please  find  Assist.  Treas.  C.  D.  [certificate  of 

deposit]  No.  39  for  two  thousand  five  hundred  ($2500)  dollars  [or  other  sum] , 
which  pass  to  our  credit. 

The  Swift  &  Courtney  &  Beecher  Co. 

,  Manager. 
(Office  Form  80.) 

Authority  to  take  credit  on  Form  55|. 

Treasury  Department, 
Office  of  Internal  Revenue, 

[Date.] 
Swift  &  Courtney  &  Beecher  Co., 
Philadelphia,  Pa.: 
Sir  :  The  following  credit  has  this  day  been  given  you  on  the  books  of  this 
office  on  account  of  internal-revenue  adhesive  stamps,  viz. ; 


862 


FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 


By  duplicate  certificate  of  deposit  No. 

dated  ,  for 

Commission,  @  10  per  cent., 


of  the  Asst.  Treas. 


$2500 
250 


Total, $2750 

You  are  hereby  authorized  to  take  credit  for  the  above  amount  on  Form 
55^  for  the  current  month. 
Very  respectfully, 

,  Commissioner. 

6.  In  compliance  with  directions  thus  given  by  the  Commissioner 
and  with  Form  55^,  the  complainant  made  its  first  return  July  8, 
1870,  and  regularly  thereafter  each  month  during  the  whole  period. 
These  returns,  with  like  statements  in  gross  made  by  the  Commis- 
sioner, were  forwarded  by  the  latter  to  the  Auditor  of  the  Treasury, 
and  accounts  thereon  were  from  time  to  time  stated  by  him,  and 
transmitted  to  the  First  Comptroller,  by  whom  the  balances  found 
due  were  certified  in  the  manner  that  accounts  are  adjusted,  and 
settled  in  the  Treasury  Department. 

7.  From  the  commencement  the  Commissioner  of  Internal  Rev- 
enue held  that  the  amount  allowed  by  statute  was  to  be  computed 
as  commissions  upon  the  amount  of  money  paid ;  and  all  business 
between  the  parties  was  transacted,  and  all  accounts  were  stated  and 
adjusted,  by  the  accounting  officers  on  that  .basis. 

8.  The  blank  forms  of  55 J  were  furnished  by  the  Commissioner  to 
the  claimants,  who  filled  them  up  and  returned  them  in  accordance 
with  the  Commissioner's  directions  and  decision. 

9.  The  first  return  thereon  in  which  commissions  were  stated 
was  as  follows : 

(55^.) 
The  United  States  in  account  current  with  the  Swift  &  Courtney  &  Beecher 
Co.,  of  Wilmington,  Del.,  for  the  month  ending  July  31,   1870,  under 
ofiScial  bond  dated  ,  for  $60,000. 


To  cash  deposited  as  per  certificate  No.  1421  $10,000 

Commission,  per  certificate  on  same 1,000 

Balance  due  United  States 10,950 

$21,950 


By  balance  from  last  month $16,475 

By  stamps  rec'd  on  order  dated  July  30....      5,475 

$21,950 


The  above  account  is  complete  and  true. 
Dated  August  9,  1870. 

The  Swift,  Courtney  &  Beecher  Co., 
By  Wm.  H.  Swift,  Treasurer  Match  Manufacturers. 

10.  The  last  return  made  before  the  commencement  of  this  action 

was  as  follows  : 


FORMS  FOR  COURT  OF  CLAIMS. 


863 


(55J.) 
The  United  States  in  account  current  with  Swift  &  Courtney  &  Beecher  Co., 
of  New  Haven,  Conn.,  for  the  month  ending  December  31,  1878,  under 
bond  dated  December  14,  1872,  for  $150,000. 
Dr.  Cr. 


Dec'r 


To  cash  deposited,  as  per  certifi- 
cate : 

No.  5827  Wilmington 

5821  Philadelphia 

New   Haven 

5834  Wilmington 

810  New  Haven 

96  Chicago 

31  Philadelphia 

5840  Wilmington 

815  New  Haven 

To  commission  on  amount  depos- 
ited :     821  New  Haven 

103  Chicago 

39  Philadelphia 

5851  Wilmington 

109  Chicago 

51  Philadelphia 

834  New  Haven 

To  commission  @  10  per  cent 

Balance  due  United  States 


$5,000 
2,500 
2,000 
5,000 
2,000 
3,000 
2,500 
5,000 
2,000 

2,000 
3,000 
2,500 
5,000 
5,000 
2,500 
2,000 
5,100 
96,250 


$152,350 


By  balance 
By  stamps 
No.  6676  ai 
6692 
6700 
6704 
6711 
6721 
6746 
6745 
6750 
6762 
5768 
6789 
6794 
6800 


from  last  month., 
received  on  order : 
5  New  Haven 

Chicago 

WilQiington 

Philadelphia 

New  Haven 

Wilmington 

New  Haven 

Chicago 

Philadelphia 

Wilmington 

New  Haven 

Chicago 

New  Haven 

Philadelphia 


$106,700 

2,200 
3,300 
5,500 
2,750 
2,200 
5.500 
2,200 
3,300 
2,750 
5,500 
2,200 
3,300 
2,200 
2,750 


8152,350 


The  above  account  is  correct,  complete  and  true. 

Swift  &  Courtney  &  Beecher  Co.,  Match  Manufacturer. 

Wm.  H.  Swift,  Treasurer. 
Dated  January  8,  1879. 

Note. — The  face  value  of  stamps  must  always  be  inserted  in  the  credit  side  of  this  account. 

The  monthly  intervening  returns  were  in  like  form  as  the  above. 

11.  Such  returns,  with  the  Commissioner's  statement  coinciding 
therewith,  having  been  transmitted  to  the  accounting  officers,  were 
settled  and  adjusted  from  time  to  time,  as  was  the  following  account, 
which  is  inserted  here  as  a  specimen  of  all : 

Treasury  Department,  Fifth  Auditor's  Office, 

July  6,  1872. 

I  hereby  certify  that  I  have  examined  and  adjusted  an  account  between 
the  United  States  and  The  Swift  &  Courtney  &  Beecher  Co.,  match  manu- 
facturers, internal-revenue  stamp  agents  at  Wilmington,  Del,,  for  the  quarter 
commencing  Oct.  1,  1871,  and  ending  Dec.  31,  1871,  and  find  them  chargeable 
therein,  as  follows : 

),000,  dated  May  17,  1870. 
30,000       "        "     24,  1870. 
To  balance  due  from  them  per  report  No.  2939  (register's 

certificate), 39,050 

To  stamps,  as  per  receipt  dated  in  Oct.,  1871,  .        .         .    24,200 
"  "  Nov.,  1871,  .        .   26,950 

"  "  Dec,  1871, .        .        .    24,200 

"  "  Jan.  2,  1872,        .        .      1,650 

116,050 


Bond 


C$c 


864  FEDERAL   PLEADING,    PRACTICE   AND    PROCEDURE. 

Amount  brought  forward, $116,050 

I  also  find  them  entitled  to  credit  as  follows : 

No.  2536,  covering  warrant  No.  242,  4  quarter,  1871,  .  1,500  00 

No.  1935,        "  "        "       "     "        "        "  1,  .  5,000  00 

No.  2553,        "  "        "       "     "        "        "  1,  .  1,500  00 

No.  1947,        "  "        "       "     "        "         "1,  .  5,000  00 

No.  1957,        "  "        "       "     "        "        "  1,  .  5,000  00 

"    2570,  496,  "        "  1,  .  1,500  00 

"     1973,  "     "        "  1,  .  5,000  00 

"     2583,  "     •'        "  1,  .  1,500  00 

"     1982,  "     "         "  1,  .  6,000  00 

"    2594,  "     "        "  1,  .  1,500  00 

"     1995,  "     "        "  1,  .  5,000  00 

"     2608,  "      "        "  .  1,500  00 

"     1997,  754,  "        "  1,  .  5,000  00 

"     2616,  "     "        "  .  1,500  00 

"     2013,  "     "        "  1,  .  5,000  00 

"     2629,  a     a        u  1,  .  1,500  00 

"     2014,  "      "  .  1,000  00 

"     2640,  "     "        "  1,  .  1,500  00 

"     2025,  "     "  .  5,000  00 

''     2650,  .  "     "        "  1,  .  1,500  00 

By  ten  per  cent,  commission  on  amount  deposited,    .  .  6,200  00 

68,200 


Leaving  balance  due  the  United  States  with  which  they  are 
to  be  charged, 47,850 

As  appears  from  the  account  and  vouchers  herewith  transmitted  for  the 
decision  of  the  Comptroller  of  the  Treasury  thereon. 

J.  H.  Ela,  Auditor. 
To  the  First  Comptroller  of  the  Treasury. 

Treasury  Department,  Comptroller's  Office, 

July  16,  1872. 
I  admit  and  certify  a  balance  of  forty-seven  thousand  eight  hundred  and 
fifty  dollars  as  due  the  United  States,  as  stated  in  the  foregoing  report. 

Wm.  Hemphill  Jones,  Acting  Comptroller. 
To  the  Register  of  the  Treasury. 

Notices  of  such  settlements  were  forwarded  to  the  claimants  by 
mail. 

IV.  Prior  to  June  30, 1866,  the  leading  manufacturers  of  matches, 
among  whom  was  William  H.  Swift,  who,  upon  the  organization  of 
the  claimant  corporation  in  1870,  became  one  of  its  large  stock- 
holders and  treasurer,  made  repeated  protests  to  the  officers  of  the 
Internal  Revenue  Bureau  against  the  method  of  computing  com- 


FORMS  FOR  COURT  OF  CLAIMS.  865 

missions  for  proprietary  stamps  sold  to  those  who  furnish  their  own 
dies  and  designs. 

But  it  does  not  appear  that  any  one  in  behalf  of  the  claimant 
corporation  ever,  after  its  organization,  made  any  protest  or  objec- 
tion against  the  method  adopted  by  the  Treasury  Department  for 
the  computation  of  such  commissions,  or  made  claim  to  any  allow- 
ance on  account  thereof  beyond  what  had  been  accorded  to  them, 
until  January  8,  1878,  when  the  following  correspondence  took 
place : 

Washington,  D.  C,  Jan.  8,  1879. 
Hon.  Green  B.  Raum, 

Com'r  of  Int.  Rev. : 
Sir  :  I  have  the  honor  to  state  that  The  Swift  &  Courtney  &  Beecher  Co. 
manufacture  matches  arid  use  their  own  proprietary  stamps.  They  claim 
that  there  is  due  to  them  from  your  office  the  sum  of  $35,822  50  as  commis- 
sions upon  stamps  purchased  as  provided  in  section  3425  of  the  Revised  Stat- 
utes. I  have  the  honor  to  ask  on  behalf  of  said  company,  and  as  their  at- 
torney, for  the  payment  of  said  sum  due  as  aforesaid. 

Very  respectfully, 

George  H.  Williams. 


Treasury  Department, 
Office  of  Internal  Revenue, 

Washington,  January  16,  1879. 

Sir  :  Your  letter  of  the  8th  inst.,  stating  that  The  Swift  &  Courtney  & 
Beecher  Co.,  manufacturers  of  matches,  claim  that  there  is  due  them  the  sum 
of  $35,822  50  as  commissions  upon  stamps  purchased  as  provided  in  section 
3423  of  the  Revised  Statutes,  and  asking  on  behalf  of  said  corporation  that 
payment  of  said  sum  be  made,  has  been  received. 

In  reply  I  have  to  say  that  The  Swift  &  Courtney  &  Beecher  Co.  has  re- 
ceived all  commissions  upon  stamps  to  which  they  are  entitled,  provided  the 
method  of  computing  commissions  which  was  inaugurated  with  the  first  issue 
of  private-die  proprietary  stamps,  and  has  been  continued  by  each  of  my 
predecessors,  is  correct. 

I  have  heretofore  decided  to  adhere  to  the  long-established  practice  of  the 
office  in  this  regard  until  there  shall  be  some  legislation  or  a  judicial  decision 
to  change  it. 

In  the  absence  of  such  legislation  or  judicial  decision  the  claim  made  by 
you  in  behalf  of  The  Swift  &  Courtney  &  Beecher  Co.  is  hereby  rejected. 

Respectfully, 

Green  B.  Raum,  Commissioner. 
George  H.  Williams, 

Attorney,  Washington,  D.  C. 
55 


866  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

V.  From  May  6,  1870,  to  December  24,  1878,  the  claimant  cor- 
poration received  from  the  Commissioner  of  Internal  Revenue 
proprietary  stamps  printed  from  its  own  private  dies  of  the  face 
value  of  three  million  eight  hundred  ninety-seven  thousand  two 
hundred  four  dollars  ($3,897,204).  These  were  received  in  fulfill- 
ment of  more  than  sixteen  hundred  orders  for  different  amounts, 
varying  from  $500  to  $10,000,  in  form  as  set  forth  in  paragraph  1 
of  Finding  III. 

Each  remittance  of  said  stamps  exactly  covered  in  face  value  the 
amount  of,  with  ten  per  cent,  commission  added  to,  the  money  spec- 
ified in  an  order,  and  the  claimant  w^as  notified  thereof  by  letter  in 
the  form  set  out  in  paragraph  2  of  Finding  III. 

Each  receipt  of  said  stamps  in  reply  to  said  orders  was  acknowl- 
edged by  the  claimant  by  a  letter,  printed' blank  for  which  was 
furnished  by  the  Commissioner,  and  was  in  form  as  set  out  in  para- 
graph 3  of  Finding  III. 

All  these  stamps  so  received  by  the  claimant  were  paid  for  at  or 
before  the  expiration  of  sixty  days  after  their  receipt,  in  manner 
set  forth  in  paragraphs  5,  6  and  7  of  Finding  III. 

VI.  1.  Stating  accounts  between  the  parties,  for  the  purposes 
of  this  case,  at  such  periods  of  time  as  either  party  considered  at 
the  trial  to  be  material,  the  following  facts  appear : 

Whole  face  value  of  stamps  delivered  from  May  6,  1870,  to  No- 
vember 21,  1878  (sixty  days  before  action  brought),        .         .  §3,836,544 

Paid  for  within  sixty  days  after  purchase: 

By  cash, $3,487,767 

By  commissions  on  money  paid,      ....     .348,777 


3,836,544 


Difference  between  amount  of  discount  at  ten  per  cent, 
on  the  face  value  and  the  amount  actually  allowed 
as  commissions  on  the  money  paid,         .         .         .         34,878 

2.  Whole  face  value  of  stamps    delivered  from  Nov. 

21,  1872,  for  six  years,  up  to  Nov.  21,  187S,  ,         .         .    3,147,944 

Paid  for  within  sixty  days  after  purchase : 

By  cash, 2,861,767 

By  commissions  on  money  paid,     ....       286,177 


3,147,944 


Difference  between  amount  of  discount  of  ten  per  cent. 
on  face  value  and  the  amount  actually  allowed  as 
commissions  on  the  money  paid,     ....         28,816 


FORMS  FOR  COURT  OF  CLAIMS.  867 

CONCLUSION  OF  LAW. 

Upon  the  foregoing  findings,  the  court  decides  as  a  conclusion  of 
law  that  the  claimant  corporation  is  not  entitled  to  judgment  in  its 
favor  and  that  its  petition  must  be  dismissed. 

Richardson,  J.,  delivered  the  opinion  of  the  court : 

When  this  case  was  first  submitted  at  a  former  term  of  the  court 
it  was  upon  demurrer  to  the  claimants'  petition,  and  the  single 
question  then  considered  was  whether  or  not  the  method  of  com- 
puting commissions  on  stamps  sold  to  proprietors  of  matches  and 
other  proprietary  articles  who  furnished  their  dies,  adopted  and 
long  followed  by  the  Internal  Revenue  Bureau  and  the  Treasury 
Department,  should  be  sustained. 

Without  at  that  time  expressing  an  opinion  as  to  the  correctness 
of  the  rule,  in  passing  judgment  upon  the  demurrer,  and  without 
then  much  considering  it,  but  regarding  it,  if  not  clearly  correct,  at 
least  not  free  from  ambiguity  and  doubt,  we  felt,  on  the  authority 
of  Mr.  Alexander's  case  (12  Wall  177)  and  Pugh's  case  (99  U. 
S.  265),  that  we  were  not  authorized  to  overthrow  a  construction 
of  the  statute  so  long  acquiesced  in  by  all  parties  concerned,  in 
transactions  of  such  great  magnitude,  and  involving  such  large  pe- 
cuniary interests,  and  we  therefore  sustained  the  demurrer. 

Upon  appeal,  the  Supreme  Court,  from  the  course  of  the  argu- 
ment at  the  hearing  there,  and  certainly  not  from  any  concession 
ever  made  by  the  oflBcers  of  the  Internal  Revenue  Bureau,  or  by 
any  other  officers  of  the  Treasury  Department,  regarding  it  as  "vir- 
tually admitted  that  the  contention  on  the  part  of  the  appellant 
[the  claimant]  upon  the  provisions  of  the  statutes  is  correct,"  held, 
as  has  often  been  held  by  that  court  and  by  this,  that  "  the  rule 
which  gives  determining  weight  to  contemporaneous  construction  put 
upon  a  statute  by  those  charged  with  its  execution  applies  only  in 
cases  of  ambiguity  and  doubt."  Applying  the  rule  to  the  case  as 
virtually  admitted  in  the  Supreme  Court,  the  judgment  of  this  court 
on  demurrer  was  reversed  (105  U.  S.  R.  691).  It  could  not  have 
been  otherwise  under  those  circumstances,  when  the  contention  of 
the  officers  of  the  Treasury  Department  was  thus  abandoned. 

In  point  of  fact  the  officers  of  the  Internal  Revenue  Bureau  and 
of  the  Treasury  Department  charged  with  the  execution  of  the  law 
have  always  strenuously  maintained  that  the  rule  adopted  by  them 


868  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

■was  in  accordance  with  the  will  of  Congress  as  shown  by  the  course 
of  legislation. 

The  first  internal-revenue  act,  passed  July  1,  1862,  authorized 
the  Commissioner  to  sell  adhesive  stamps  therein  provided  for,  and 
to  make  an  allowance  to  purchasers  of  not  exceeding  5  per  cent. 
"  as  commission,"  with  a  proviso  that  proprietors  of  the  proprietary 
articles  named,  who  should  furnish  their  own  dies  or  designs,  should 
be  allowed  a  "discount"  of  5  or  10  per  cent.,  according  to  the 
amounts  purchased.     (Ch.  119,  §  102,  12  Stats.  L.  477.) 

The  two  words,  commission  and  discount,  are  not  synonymous. 
They  are  similar,  but  not  identical.  "  Commission,"  in  its  tech- 
nical as  well  as  in  its  ordinary  sense,  generally  signifies  a  percentage 
upon  the  amount  of  money  involved  in  tlie  transaction,  as  distin- 
guished from  "  discount,"  which  is  a  percentage  taken  from  the  face 
value  of  the  security  or  property  negotiated.  (Bouvier's  Law  Dic- 
tionary, under  "  Commissions,"  Ficklin's  National  Arithmetic,  2d 
Book  Advanced,  paragraph  356,  and  other  standard  mathematical 
works.) 

The  Commissioner  of  Internal  Revenue  understood  that  Con- 
gress intended  to  use  the  two  words  in  their  distinct  significations, 
as  expressing  two  distinct  methods  of  allowance.  Accordingly, 
when  he  issued  his  first  circular,  after  the  bureau  was  fairly  organ- 
ized, on  the  12th  of  January,  1863,  he  gave  notice  that  a  com- 
mission would  be  allowed  on  adhesive  stamps  of  2  per  cent,  on 
purchases  of  $50,  3  per  cent,  on  $100,  4  per  cent,  on  $500,  and 
$5  per  cent,  on  $1000,  payable  in  stamps.  (Boutwell's  Direct  and 
Excise  Tax  System,  p.  391.)  This  language  did  not  artistically 
express  the  idea  of  "  commission,"  but  such  was  its  practical  efiect. 
A  percentage  on  the  face  value  of  stamps,  payable  in  stamps,  ex- 
actly equals  a  percentage  on  the  money  involved  in  the  transaction, 
and  so  is  strictly  and  technically  a  "  commission." 

No  reference  was  made  in  this  circular  to  the  sale  of  proprietary 
stamps,  and  it  seems  to  have  been  understood  that  Congress  intended 
to  apply  to  them  a  different  rule  of  allowance.  But  in  less  than  two 
months,  on  the  3d  of  March,  1863,  Congress,  by  express  enactment, 
changed  the  word  "  discount "  in  the  act  of  1862  to  "  commission  " 
by  striking  out  the  one  and  inserting  the  other,  at  the  same  time 
providing  for  a  uniform  commission  of  10  per  cent,  on  the  whole 
amount,  instead  of  5  per  cent,  on  small  and  10  per  cent,  on  large 
purchases.     (Ch.  74,  12  Stats.  L.  718.) 


FORMS  FOR  COURT  OF  CLAIMS.  869 

This  change  of  percentage  in  the  allowance  for  the  purchase  of 
proprietary  stamps  from  "discount"  to  "commission"  certainly 
appears  to  have  been  made  for  the  sole  purpose  of  altering  the  law 
and  sanctioning  the  construction  given  by  the  Commissioner,  other- 
wise it  was  of  no  practical  eifect.  If  the  percentage  was  to  be  com- 
puted upon  the  face  value  of  the  stamps  after  the  word  "commis- 
sion "  took  the  place  of  "discount,"  then  it  was  discount  still,  and 
the  express  alteration  of  the  statute  made  no  change  in  the  law,  and 
was  as  idle  and  useless  in  practical  effect  as  it  was  inappropriate 
and  inaccurate  in  language. 

Whether  or  not  the  whole  phraseology  of  the  section  of  the  stat- 
ute was  aptly  chosen  in  every  particular  to  express  the  correct  idea 
of  commission,  it  can  hardly  be  conceived  that  Congress  intended  to 
allow  discount  after  having  stricken  out  that  word  and  put  in  its 
place  one  susceptible  of  a  diflferent  signification. 

The  Internal  Revenue  Bureau  and  the  officers  of  the  Treasury 
Department  very  naturally  regarded  the  change  in  language  as 
effecting  a  change  in  the  law,  and  they  have  ever  since  allowed 
purchasers  of  proprietary  stamps,  who  furnish  their  own  dies,  not  a 
"discount"  from  the  face  value  of  the  stamps  purchased,  but  a 
"  commission  "  computed  on  the  amount  of  money  involved  in  the 
transaction,  and  all  the  dealings  of  the  parties  have  been  in  that 
more  accurate  form  of  account  instead  of  by  the  formula  of  "  pay- 
able in  stamps,"  as  the  findings  show. 

This  construction  was  acquiesced  in  by  purchasers  of  proprietary 
stamps  without  objection  after  the  year  1866  to  near  the  time  of 
bringinor  this  action. 

The  decision  of  this  case  as  it  is  now  before  us  does  not  neces- 
sarily turn  upon  the  correctness  of  the  practice  of  the  Treasury 
Department  in  the  method  of  computing  commissionsi,  and  we  have 
thus  reviewed  the  subject  in  order  to  show  that  the  officers  charged 
with  the  duty  of  administering  the  law  from  its  first  enactment  to 
the  present  time  have  acted  not  without  reason  and  due  considera- 
tion, nor  without  the  apparent  sanction  of  Congress. 

Upon  the  right  to  recover  at  the  trial  on  the  demurrer,  the  Su- 
preme Court  had  before  it  only  the  petition  of  the  claimant,  admit- 
ted by  the  demurrer  to  be  true  for  the  purposes  of  that  hearing. 
Of  this  they  say,  "the  case  made  by  the  petition  is  not  that  of 
successive  and  independent  purchases  of  stamps,  settled  for  at  the 


870  FEDERAL    PLEADING,    PRACTICE   AND    PROCEDURE. 

time  when  the  commissions  given  by  the  law  were  paid  by  the  Com- 
missioner, the  purchaser  voluntarily  accepting  payment,  not  in 
money,  but  in  other  stamps ;  and  new  dealings  of  the  same  char- 
acter, but  separate  as  to  each  instance,  had,  afterwards,  upon  the 
same  footing  and  by  mutual  understanding.  On  the  contrary,  the 
business  was  conducted  upon  the  footing  of  a  running  account." 

The  court  further  say  that  the  dealing  as  presented  by  the  peti- 
tion "  does  not  prove  that  he  [the  proprietor]  was  willing  to  waive 
his  right  to  a  commission  upon  the  stamps  so  purchased.  And  it 
would  be  incumbent  on  the  government,  in  order  to  deprive  him  of 
his  statutory  right,  not  only  to  show  facts,  from  which  an  agree- 
ment to  do  so  might  be  inferred,  but  an  actual  settlement  based 
upon  such  an  understanding." 

Since  the  final  decision  upon  the  demurrer,  the  defendants  have 
had  leave  to  answer  over  and  have  filed  a  plea  of  general  issue,  and 
the  real  facts  have  been  proved  by  the  parties  and  found  by  the 
court,  and  we  are  now  called  upon  to  apply  to  these  facts  the  rules 
of  law  laid  down  by  the  Supreme  Court. 

It  now  appears  from  these  findings  that  the  dealings  of  the  par- 
ties disclose  a  case  not  only  entirely  different  from,  but  exactly  the 
opposite  to,  that  implied  from  the  allegations  in  the  petition  alone 
upon  which  the  Supreme  Court  was  then  called  upon  to  pass  judg- 
ment. It  is  shown  that  those  dealings  were  successive  and  inde- 
pendent purchases,  upon  written  orders  fulfilled  by  the  delivery  of 
stamps  of  the  face  value  of  10  per  cent,  more  than  the  money  order  ; 
that  in  each  case  those  stamps  were  received  and  receipted  for  by 
the  claimant,  in  satisfaction  of  the  order ;  that  within  sixty  days 
each  order  was  paid  for  on  that  basis ;  that  there  was  no  running 
account  beyond  sixty  days'  credit,  or  beyond  the  monthly  settle- 
ments which  .were  made  on  the  basis  of  the  orders  and  corre- 
spondence and  upon  the  returns  signed  by  the  claimant  and  for- 
warded to  the  Commissioner,  and  that  the  accounting  officers  made 
frequent  statements  of  balances  on  the  same  basis. 

The  Supreme  Court  say,  "  it  would  be  incumbent  on  the  govern- 
ment not  only  to  show  facts,  from  which  an  agreement  might  be 
inferred,  but  an  actual  settlement  based  upon  such  an  under- 
standing." 

In  our  opinion  the  government  has  now  done  both.  The  written 
contract  set  forth  in  the  bond  (Finding  II.)  was  that  the  claimant 


FORMS  FOR  COURT  OF  CLAIMS.  871 

corporation  should  on  or  before  the  tenth  day  of  each  ajid  every 
month  make  a  statement  of  their  account  upon  Form  55|,  showing 
the  balance  due  at  the  commencement  of  the  month,  the  amount  of 
stamps  received,  and  the  amount  of  money  remitted  by  it  during  the 
month,  and  the  balance  due  from  it  at  the  close  of  the  month  next 
preceding;  and  also  that  the  company  should  pay  all  and  every 
sum  or  sums  of  money  it  might  owe  the  United  States  for  stamps 
delivered  or  forwai'ded  to  it  "  according  to  their  request  or  order, 
within  the  time  prescribed  for  payment  for  the  same  according  to 
law ;"  that  is,  each  purchase  was  to  be  paid  for  within  sixty  days 
of  delivery  of  the  stamps. 

The  statute  fixed  a  limit  to  the  term  of  credit  for  each  purchase, 
and  this  agreement  fixed  in  addition  thereto  the  terms  of  settlement, 
not  payment  merely,  but  an  accounting  between  the  parties,  an  ac- 
cord and  satisfaction.  So  the  parties  always  did  their  business  from 
the  commencement  without  objection  on  the  part  of  the  claimant  for 
nearly  nine  years  and  until  this  action  was  about  to  be  instituted. 
We  will  review  the  course  of  business. 

Each  purchase  of  stamps  was  upon  a  written  order,  separate  and 
distinct  from  all  other  purchases.  The  claimant  ordered,  say, 
"three  thousand  dollars'  worth  of  match  stamps,"  as  shown  in 
paragraph  1  of  Finding  III.  The  Commissioner  thereupon  for- 
warded stamps  of  the  face  value  of  $3300,  with  a  letter  stating 
that  they  were  in  satisfaction  of  the  order  referred  to  (paragraph  2 
of  Finding  III.),  and  the  claimant,  in  writing  signed  by  its  proper 
officer,  returned  an  acknowledgment  of  the  receipt  of  stamps  of  the 
face  value  of  $3300,  in  satisfaction  of  the  order  for  three  thousand 
dollars'  worth  of  stamps.     (Paragraph  3  of  Finding  III.) 

These  are  facts  from  which  an  agreement  may  not  only  be  in- 
ferred, but  which  must  be  held  to  constitute  an  explicit  contract,  a 
sale  and  purchase  at  a  price  fixed  and  agreed  upon  by  the  parties. 

The  course  of  business  subsequent  to  the  delivery  of  stamps  and 
to  the  acknowledgment  by  the  claimant,  reaffirms  the  contract  as 
thus  understood  by  the  parties.  The  claimant  was  to  pay  for  each 
delivery  within  sixty  days,  and  so  it  always  did.  At  the  end  of 
each  sixty  days  after  the  fulfillment  of  an  order  that  order  was 
invariably  paid. 

In  one  sense  there  was  a  running  account  for  sixty  days  ;  that 
is,  as  to  terms  of  payment.     After  the  first  order  was  given,  and 


872  FEDERAL    PLEADING,    PRACTICE    AND    PROCEDURE. 

before  the  sixty  days  for  payment  had  expired,  there  were  many 
intervening  orders  of  like  kind.  It  was  not  convenient  to  send  a 
separate  remittance  of  money  in  payment  for  each  separate  de- 
livery of  stamps,  when,  as  the  findings  show,  more  than  sixteen 
hundred  such  deliveries  were  made,  and  the  claimant  accordingly 
made  remittance  in  sums  to  suit  its  own  convenience,  taking  care 
always  that  full  payment  should  be  effected  before  the  term  of  credit 
on  any  one  order  had  expired.  If  at  any  time  a  remittance  covered 
more  than  was  payable  at  its  date,  it  was  practically  a  payment  of 
what  had  matured,  and  the  balance  went  towards  payment  of  the 
next  maturing  order.  In  so  large  a  business  the  parties  did  not 
stop  to  adjust  each  transaction  separately.  But  they  did  settle 
each  month,  as  we  have  shown  ;  and  such  settlements  were  recog- 
nized by  the  correspondence  had  upon  each  remittance  of  money, 
as  well  as  agreed  upon  in  the  bond,  and  were  regularly  made  every 
month  throughout  the  whole  period  of  nine  years.  In  acknowl- 
edging each  remittance  the  Commissioner  gave  the  claimant  credit 
for  the  money  remitted,  with  10  per  cent,  added  thereto  as  com- 
missions, and  authorized  it  "  to  take  credit  for  the  above  amount 
on  Form  55|  for  the  current  month,"  as  shown  by  paragraph  5  in 
Finding  III. 

As  to  periods  of  settlement,  accord  and  satisfaction,  we  may 
therefore  consider  that  there  was  a  running  account  for  each  period 
of  one  month,  as  appears  from  the  specimen  monthly  account-cur- 
rent set  forth  in  paragraph  10  of  Finding  III.  These  accounts- 
current  were  regularly  sent  forward  to  the  accounting  officers,  and 
by  them  adjusted  and  balances  stated  from  time  to  time  in  accord- 
ance with  the  practice  of  the  Treasury  Department,  of  which  the 
claimant  had  due  notice. 

There  was  not  such  a  general  running  account  between  these 
parties  for  the  period  of  nine  years  from  the  commencement  of 
their  dealings  as  entitles  the  claimant  to  a  statement  of  its  whole 
account  for  that  time,  opening  its  own  monthly  settlements  and  the 
settlements  of  the  accounting  oflScers,  setting  aside  its  own  sixteen 
hundred  contracts,  and  making  to  it  a  greater  allowance  than  was 
from  time  to  time  agreed  upon,  even  if  it  would  have  been  entitled 
to  such  greater  allowance  had  it  not  otherwise  contracted. 

In  our  opinion,  under  the  rules  laid  down  by  the  Supreme  Court 
in  this  very  case,  as  well  as  in  the  case  of  Francis  E.  Pray,  decided 


FORMS  FOR  COURT  OF  CLAIMS.  873 

by  that  court  at  the  present  term,  the  claimant  corporation  is  con- 
cluded by  its  own  agreements  and  settlements  ;  that  it  has  no  cause 
of  action,  and  that  its  petition  must  be  dismissed. 

In  this  result  the  claimant  suffers  no  injustice.  It  is  to  be  pre- 
sumed, from  its  long  acquiescence  in  paying  for  stamps  in  the  man- 
ner and  to  the  extent  shown  by  the  findings,  that  it  added  the  whole 
amount  thus  paid  in  taxes  to  the  value  of  its  articles  manufactured, 
and  charged  the  same  to  the  purchasers.  If  so,  the  consumers 
finally  paid  the  taxes,  while  the  money  recovered  back,  if  any, 
would  go  not  to  the  consumers,  but  to  the  claimant  as  extra  and 
unexpected  profits. 

Judgment  will  be  entered  dismissing  the  petition. 


Form  No.  276. 

Judgment   for  claimant. 


David  Graham 

V. 

The  United  States. 


The  court,  on  due  consideration  of  the  premises,  do  find  for  the 
claimant,  and  do  adjudge  and  decree  that  the  said  David  Graham 
do  have  and  recover  of  and  from   the  United   States  the  sum  of 


Form  No.  277. 

Judgment  for  defendants. 

James  Swift  ^ 

( 
The  United  States,      j 

The  court,  on  due  consideration  of  the  premises,  find  for  the  de- 
fendant, and  do  order,  adjudge  and  decree  that  the  claimant's 
petition  be  dismissed. 


874         federal  pleading,  practice  and  procedure. 

Form  No.  278. 

Order  on  motion  for  intervention. 
William  Fielding        ^ 

r 

The  United  States.      J 

Upon  the  motion  of  John  Donally  and  James  Boston  for  leave 
to  intervene  herein,  it  is  ordered  that  tlie  motion  be  overruled. 


Form  No.  279. 

Ruling  upon  a  motion  for  a  nevy  trial. 
Albert  Kellogg         ^ 

The  United  States.     J 

The  motion  of  the  plaintiff  herein  for  a  new  trial  in  this  case  is 
overruled. 


Form  No.  280. 

Judgment  confirming  report  of  referee  and  decree  thereon. 
John  Campbell  "| 

( 
The  District  of  Columbia.      J 

Upon  motion  of  Mr.  Dyer  for  the  claimant,  for  a  confirmation  of 
the  report  of  C.  D.,  referee,  herein  filed,  and  for  judgment  thereon, 
said  report  is  confirmed.  And  the  court,  on  due  consideration  of 
the  premises,  find  for  the  claimant,  and  order,  adjudge  and  decree 
that  the  said  John  Campbell  do  have  and  recover  to  the  use  of 
Samuel  Campbell  in  the  manner  provided  by  the  act  of  June  16, 
1880,  chapter  two  hundred  and  forty-three,  the  sum  of  , 

upon  debts  of  the  District  of  Columbia,  due  and  payable  December 
20,  1875,  within  the  meaning  of  the  sixth  section  of  the  said  act. 


forms  for  court  of  claims.  875 

Form  No.  281. 

Certified  transcript  of  pleadings,  findings,  etc. 
A.  B.  ] 

The  United  States.      J 

I,  ,  clerk  of  the  Court  of  Claims,  do  hereby  certify  that 

the  foregoing  are  true  transcripts  of  the  pleadings  in  the  above- 
entitled  cause,  of  the  findings  of  fact  by  the  court,  and  the  conclu- 
sion of  law  thereon. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  afiixed 
the  seal  of  said  court  at  Washington,  this         day  of  ,  18     . 

,  Clerk  Court  of  Claims. 


Form  No.  282. 

Attested  judgment. 


A.  B. 


The  District  of  Columbia.  J 

At  a  Court  of  Claims  held  in  the  city  of  Washington, 
of  ,  A.  D.  18     ,  judgment  was  ordered  to  be  entered  up  as 

follows : 

The  court,  upon  due  consideration  of  the  premises,  find  in  favor 
of  the  claimant  ,  and  do  order,  adjudge  and  decree  that  the  said 
have  and  recover  in  the  manner  provided  by  the  act  of 
June  16,  1880,  chapter  243,  upon  debts  of  the  District  of 

Columbia  due  and  payable  within  the  meaning  of  the  sixth 

section  of  said  act. 

A  true  copy  of  record. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  affixed 
the  seal  of  said  court  at  Washington,  this  day  of  , 

A.  D.  18     . 

,  Clerk  Court  of  Claims. 

Attest : 

,  Chief  Justice. 


876         federal  pleading,  practice  and  procedure. 

Form  No.  283. 

Certified  judgment. 

A.  B.  ^ 

The  United  States.      J 

At  a  Court  of  Claims  held  in  the  city  of  Washington, 
of  ,  A.  D.  18     ,  judgment  was  ordered  to  be  entered  up  as 

follows : 

The  court,  upon  due  consideration  of  the  premises,  find  in  favor 
of  the  claimant  ,  and  do  order,  adjudge  and  decree  that  the  said 
have  and  recover  of  and  from  the  United  States  the  sum 
of 

A  true  copy  of  record. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  affixed 
the  seal  of  said  court  at  Washington,  this  day  of  , 

A.  D.  18     . 

,  Clerk  Court  of  Claims. 

Attest : 

,  Chief  Justice. 


FoRJi  No.  284. 

Application  for  appeal  and  order  allowing  same. 

A.  B.  "I 

( 
The  District  of  Columbia.      J 

From   the  judgment  rendered  in   the  above-entitled   cause    on 

in  favor  of  claimant,  the  defendants,  by  their  Attorney 

General,  on  the  day  of  ,  18     ,  make  application 

for,  and  give   notice  of,  an   appeal   to   the  Supreme  Court  of  the 

United  States.  ,  Attorney  General. 

A.  B.  1        . 

( 

The  District  of  Columbia.      J 

Filed 

Ordered  by  the  court  that  an  appeal  be  allowed  in  the  above-en- 
titled cause  to  the  Supreme  Court  of  the  United  States.  [If  allowed 


FORMS  FOR  COURT  OF  CLAIMS.  877 

by  the  Chief  Justice  in  vacation,  say :  An  appeal  to  the  Supreme 
Court  in  this  cause  is  allowed  this  day  of  ,  18     .1 

,  Chief  Justice. 


Form  No.  285. 

Application  for  appeal  and  order  allowing  same. 

A.  B. 

V. 

The  United  States. 

From   the  judgment   rendered  in   the  above-entitled    cause   on 

in  favor  of  claimant,  the  defendants,  by  their  Attorney 

General,  on  the  day  of  ?  18     ,  make  application 

for,  and  give   notice  of,  an  appeal  to  the  Supreme  Court  of  the 

United  States. 

,  Attorney  General. 
Filed 
[Order  of  allowance  as  in  No.  284.] 


INDEX. 


The  references  are  to  pages. 

ACTIONS  AT  LAW.     ^qq  Procedure ;  Evidence. 

when  production  of  books  and  papers  by  parties  may  be  compelled,  433. 
practice ;  notice  and  motion  to  produce,  note,  433. 

ADMIRALTY.     See  Pleading ;  Practice  and  Procedure  ;  Appeals. 
general  principles,  70. 
the  libel,  what  it  should  contain,  70. 

must  be  filed  before  process  can  issue,  70. 
the  mesne  process,  71. 
where  there  are  several  claims,  71. 
suits  against  a  ship,  her  tackle,  etc.,  72. 
order  for  process  to  issue,  72. 
stipulation  for  costs,  72. 
when  bail  may  be  reduced,  73. 
when  new  sureties  may  be  required,  73. 
process  of  arrest  and  attachment,  73. 

garnishment,  73. 
how  attachments  may  be  dissolved,  73. 

bond  in  case  of,  73. 
when  the  marshal  may  take  bail,  74. 
stipulation  for  costs,  74. 
decree  against  stipulators,  74. 
when  execution  may  issue,  74. 
when  warrants  of  arrest  cannot  issue,  74. 
the  claim,  pleading  of  intervenor,  75. 
how  claimant  may  obtain  the  property,  75. 
where  the  property  is  owned  severally  or  jointly,  75. 
claimant  should  file  his  claim  on  the  return  day  of  the  process,  76. 
claim  and  answer,  76. 
the  claim  must  be  verified,  76. 
stipulation  for  costs  to  be  filed  by  claimant,  76. 
when  the  arrested  ship  will  be  delivered  to  claimant,  76. 
appraisement  of  the  vessel,  when  conclusive,  77. 
perishable  goods  may  be  sold,  77. 
right  of  claimant  to  property  not  absolute,  77. 
in  case  of  appeal  the  thing  does  not  follow  the  appeal,  77. 
where  a  state  court  has  property  in  custody,  federal  courts  will  not  interfere 

by  a  proceeding  in  rem,  78. 
information  or  libel  on  seizures,  78. 
what  it  must  contain,  78. 
what  it  must  aver,  78. 
amendments  of,  78. 
a  master  may  put  in  a  claim  as  bailee  for  the  owner,  79. 
claim  and  verification  not  conclusive,  79. 
how  decrees  in  admiralty  may  be  enforced,  79. 
in  prize  causes  district  and  circuit  courts  have  cognizance  of,  79. 
the  court  may  decree  restitution  of  whole  or  part  of  captured  property,  80. 

may  decree  damages  for  detention,  80. 
where  seizure  must  be  made,  80. 
process  in  case  of  seizure,  80. 
condemnation  of  property  employed  in  aid  of  insurrection,  81. 


880  INDEX. 

ADMIRALTY— con^/wMi»^. 

statutory  provisions  for  condemnation  of  property,  both  real  and  personal,  81. 
authority  of  court  over  funds  derived  from  confiscated  property,  81. 
distinction  between  instance  and  prize  causes,  81. 

seizures  cognizable  in  the  district  court  of  the  district  into  which  the  prop- 
erty may  be  first  taken,  82. 
trial  by  jury,  except  in  cases  in  equity  and  of  admiralty  and  maritime  juris- 
diction, 82. 
right  of  trial  by  jury  may  be  waived,  82. 
libels  in  instance  causes,  83. 
libels  should  show  facts  conferring  jurisdiction,  83. 

should  state  grounds  of  forfeiture,  83. 
amendments  ol  pleadings,  83. 

the  court  may  require  defendant  to  give  security  for  costs  in  certain  cases,  84. 
answers  and  verification,  84. 
exceptions  to  libel  and  answer,  85. 
default  on  failure  to  answer,  85.  « 

■when  further  answer  will  be  required,  86. 
what  defendant  may  object  to  answer,  86. 

defendant  may  require  libellant  to  answer  interrogatories,  86. 
when  verification  of  an  answer  may  be  dispensed  with  by  the  court,  87. 
new  facts  in  the  answer  treated  as  denied  by  the  libellant,  87. 
practice  in  case  of,  87. 
when  cross-bill  may  be  filed,  87. 

respondents  to  cross-bill  must  give  security,  unless  the  court  shall  other- 
wise direct,  87. 
when  the  libellant  is  entitled  to  process  of  foreign  attachment,  88. 
when  attached  property  will  be  ordered  to  be  brought  into  court,  88. 
when  the  cause  dismissed  if  the  libellant  fails  to  appear,  89. 
■when  a  decree  of  default  may  be  rescinded,  89. 

the  proceeds  of  property  to  be  paid  into  the  registry  of  the  court,  89. 
money  to  be  deposited  in  the  name  of  the  court,  subject  to  the  order  of  the 

judge,  90. 
party  interested  may  intervene  for  proceeds,  90. 
matters  may  be  referred  to  commissioners,  91. 
bail  on  arrest,  91. 
imprisonment  for  debt,  91. 
extension  of  admiralty  jurisdiction,  91. 
rule  in  England  not  applicable  in  this  country,  93. 
embezzlement  by  master  of  vessel,  93. 

liability  of  owner  limited  by  statute,  93. 

proof  made  before  commissioner  in  case  of,  94. 

owners  may  contest  their  liability  for,  95. 

further  proof  may  be  taken  on  appeal  to  the  circuit  court,  95. 
■when  district  courts  may  regulate  practice,  96. 
appeals  in  to  Supreme  Court,  246. 

where  matter  in  dispute  exceeds  $5000,  246. 

from  final  decrees,  246. 

•what  decrees  are  not  final,  247. 

within  what  time  taken,  251. 

when  want  of  jurisdiction  is  apparent  of  record,  251. 

appellant  has  a  right  to  dismiss,  252. 

when  dismissed  of  course,  252. 
AMENDMENTS.     See  Practice  and  Procedure  in  Suits  of  Law ;  Practice  and  Pro- 
cedure in  Equity, 
of  bills  when  of  course,  196. 

after  answer  or  plea,  197. 
when  filed  after  order  of  allowance,  198. 
of  bills  after  demurrer,  200. 
process  when  allowed,  514. 
process,  returns  and  pleadings,  etc.,  515. 


INDEX.  881 

ANSWER.     See  Practice  and  Procedure  in  Suits  at  Law;  Practice  and  Procedure 
in  Equit}/. 
amendments  made  after,  197. 
plea  and  answer  to  bill,  199. 
as  evidence,  201. 

matters  of  bill  not  denied  by,  taken  as  true  in  certain  cases,  201. 
answers  must  be  made  to  interrogating  part  of  bill  if  required,  202. 
M'hen   the  answer   under  oath   is  waived  it  is  not  evidence  for  defendant, 

except  in  certain  cases,  202. 
interrogatories  defendant  may  decline  to  answer,  203. 
replication  to,  203. 
amendment  to  bills  after,  on  leave  of  court,  204. 

when  it  must  be  filed,  210. 

when  amended  of  course,  210. 

when  amended  only  on  leave  of  court,  211. 

exceptions  thereto,  211. 

■when  set  down  for  hearing,  211. 

answer  after  allowance  of,  212. 
defendant  must  answer  original  bill  before  plaintiff  is  required  to  answer 
cross-bill,  215. 

APPEAL.     See  Writs  of  Error  and  Appeal, 
from  district  to  circuit  courts,  98. 
time  allowed  for  taking,  98. 
what  must  be  certified  on,  99. 
to  the  Supreme  Court,  100. 
by  both  parties,  100. 

directing  mandate  to  issue  to  inferior  federal  court,  287. 
may  affirm,  modify  or  reverse  decision  of  a  state  court  and  issue  execution 

thereon,  287. 
mandate  conclusive,  287. 

may  be  revoked,  287. 
costs  on  affirmance,  288. 

reversal,  288. 

dismissal,  288. 
opinions,  recording  of  by  clerk,  289. 
rehearing,  when  allowed,  289. 
dismissal  of  suit  in  vacation,  290. 

clerk's  duty  on,  290. 
from  the  Court  of  Claims  heard  upon  record,  291. 
what  the  record  must  contain,  291. 
rule  in  relation  to  strictly  construed,  291. 
petition  for  allowance  of  to  the  Court  of  Claims,  291. 
order  for  allowance,  291. 
time  of,  limited,  291. 

proceeding  in  case  of  diminution  of  record,  292. 
writ  of  certiorari  may  issue  to  compel  return  of  the  record,  292. 
presumption  on  that  judgment  of  inferior  court  is  in  force,  note,  497. 

ATTACHMENT.     Sbq  Admiralty  Pleading  ;  Practice  and  Procedure  ;  Process, 
of  property  in  admiralty,  73. 
by  garnishment,  73. 
may  be  dissolved,  73. 
when  perishable  goods  may  be  sold,  77. 
process  of  foreign,  88. 

when  property  will  be  ordered  into  court,  88. 
when  proceeds  to  be  paid  into  the  registry,  89. 
in  common  law  cases  to  conform  to  state  practice,  505. 
in  postal  suits,  507. 

applications  for  against  postmasters,  507. 
owner  may  claim,  508. 

56 


882  INDEX. 

ATTACHMENT— cow/mwec?. 

property  proceeds  may  be  invested,  508. 
publication  of  notice  in  case  of,  509. 
discharge  of,  bond  required,  509. 
dissolved  in  conformity  with  state  law,  509. 
property  under  revenue  laws  irrepleviable,  509. 
by  garnishment  in  favor  of  United  States,  510. 
proceedings  under,  510. 
garnishee  failing  to  appear,  510. 
in  admiralty  against  garnishees,  585. 
of  proceeds  of  property,  585. 

ATTORNEYS.     See  District  Attorneys. 
fees  of,  456,  458. 

negligence  or  fraud  of  no  cause  for  setting  aside  judgment,  497. 
liability  of  for  costs  in  certain  cases,  521. 

BAIL.     See  Procedure ;  Admiralty;   Criminal  Cases. 
by  defendant,  special  provisions  relating  to,  513. 
calling  of  in  Kentucky,  513. 
de  bene  esse,  when  taken  by  clerks,  514. 

BILLS  IN  EQUITY.     See  Practice  and  Procedure  in  Equity  ;  Supreme  Court. 
clerk's  office  always  open  for  filing,  187. 
subpoena,  proper  mesne  process  to  require  defendant  to  appear  and  answer. 

189. 
taken  joro  confesso,  when  default  may  be  entered,  192. 
frame  of  bills,  introductory  part,  193. 
what  may  be  omitted  from,  193. 
the  prayer  for  relief,  what  it  should  contain,  194. 
when  proper  parties  to,  beyond  the  jurisdiction  of  the  court,  may  be  omitted, 

194. 
what  the  prayer  for  process  must  contain,  195. 
signature  of  counsel  to,  195. 
scandal  and  impertinence  in,  195. 

when  referred  to  master  for  scandal  or  impertinence,  196. 
amendment  of,  when  of  course,  19G. 

after  answer,  197. 
when  amendment  must  be  filed  after  order  of  allowance,  198. 
demurrers  and  pleas  to,  allowance  of,  198. 
demurrer,  plea  and  answer  to  argument  on,  199. 
amendment  of,  on  allowance  of  demurrer,  costs,  200. 
effect  of  failure  to  replj^  to  plea,  200. 
effect  of  answer  as  evidence,  201. 
when  answer  not  evidence,  202. 
note  at  foot  of  bill  treated  as  part  of  it,  202. 
interrogatories  in  the  note,  203. 

defendant  may  decline  to  answer,  203. 
parties  to,  absent  parties,  204. 
non  joinder  of  merely  formal  parties,  205. 
when  parties  are  numerous,  206. 

when  trustees  and  executors  and  administrators  may  represent  parties  ben- 
eficially interested,  206. 
when  an  heir-at-law  is  not  a  necessary  party,  207. 
when  defect  of  parties  may  be  suggested  by  answer,  207. 
nominal  parties  to,  need  not  appear,  208. 
bills  of  revivor  and  supplemental  bills,  209. 
when  supplemental  bills  are  proper,  210. 

BILL  OF  EXCEPTIONS.     See  Practice;  Procedure. 
how  authenticated,  515. 


INDEX.  883 

CAPITAL  CASES.     See  Criminal  Cases. 

treason,  copy  of  indictment  in,  to  be  delivered  defendant,  417. 

witness  for  defendant,  418. 
remitted,  when,  418,  419. 

CERTIFICATE  OF  DIVISION  OF  OPINION.     See  Division  of  Opinion. 
reviewed  by  the  Supreme  Court,  252. 

may  affirm,  reverse  or  modify,  252. 

in  criminal  cases,  253. 
the  specific  point  must  be  stated,  253. 
only  the  points  stated  are  properly  before  the  court,  254. 
the  question  must  be  one  of  law  and  not  of  discretion,  254. 
in  criminal  cases,  certificate,  254. 
when  the  Supreme  Court  is  divided  on,  255. 

CERTIORARI.     See  Courts;  Jurisdiction. 
writs  of,  note,  428. 

CHALLENGES.     See  Criminal  Cases. 
in  excess  of  number  allowed,  417. 

CIRCUIT    COURTS.      See    Circuits    [Judicial);    Jurisdiction   of    Circmt    Courts; 
Practice  and  Procedure  in  Suits  at  Law  ;  Practice  and  Procedure  in  Equity. 
where  established,  102. 
by  whom  held,  103. 
justices  of  supreme  to  attend,  103. 
judges  of,  may  set  apart  and  try  cases,  103. 
maj'^  be  held  at  the  same  time  in  different  districts,  103. 
criminal  terms  in  southern  district  of  New  York,  103. 
when  judges  may  sit  to  review  their  own  opinions,  104. 
when  suits  may  be  transferred  to  another  circuit  court,  104. 
when  a  suit  transferred  may  be  certified  back,  104. 
when  justices  of  may  hold  courts  of  other  circuits,  104. 
when  no  justice  is  allotted  to,  105. 
clerks  appointed  by  the  court,  105. 

in  Alabama,  105. 

in  Iowa,  105. 

in  Kentucky,  106. 

in  North  Carolina,  106. 

in  Virginia,  106. 

in  Wisconsin,  106. 
deputy  clerks,  106. 

in  Indiana,  106. 

compensation  of,  107. 
may  appoint  commissioners,  107. 

no  marshal  or  deputy  marshal  may  act  as  commissioner,  107. 
original  and  appellate  jurisdiction  of,  108-174. 
practice  and  procedure  in  suits  at  law,  175-183. 

in  equity,  184-221. 

CIRCUITS  (JUDICIAL).     See  Circuit  Courts. 

First. — Rhode  Island,  Massachusetts,  New  Hampshire  and  Maine,  101. 
Second. — Vermont,  Connecticut,  New  York,  101. 
Third. — Pennsylvania,  New  Jersey,  Delaware,  101. 

Fourth. — Maryland,  West  Virginia,  North  Carolina,  South  Carolina,  101. 
Fifth. — Georgia,  Florida,  Alabama,  Mississippi,  Louisiana,  Texas,  101. 
.  Sixth. — Ohio,  Michigan,  Kentucky,  Tennessee,  101. 
Seventh. — Indiana,  Illinois,  Wisconsin,  101. 
Eighth. — Colorado,  Nebraska,  Minnesota,  Iowa,  Missouri,  Kansas,  Arkansas, 

101. 
Ninth. — California,  Oregon,  Nevada,  101. 

CIVIL  RIGHTS, 

proceedings  in  vindication  of,  432. 


884  INDEX. 

CLAIMS.     See  Court  of  Claims. 

CLERKS, 

appointment  of,  22,  25. 
residence  of,  22,  25. 
duties  and  powers  of,  22-26. 
appointment  of  deputies,  23,  27. 

in  Texas,  22. 

in  Kentucky,  22. 

in  Iowa,  23. 

in  Michigan,  24. 

in  Missouri,  24. 

in  Tennessee,  24. 
compensation  of,  26. 
commissions,  27. 
deputies,  appointment  of,  27. 

official  bond,  27. 

responsibility  of  clerk  for,  27. 

compensation,  how  allowed  and  paid,  25. 
duties  of  in  special  cases,  49, 

of  the  circuit  courts,  how  appointed,  105. 

in  Alabama,  105. 

in  Iowa,  105. 

in  Kentucky,  106. 

in  North  Carolina,  106. 

in  West  Virginia,  106. 

in  Wisconsin,  106. 

deputy  clerks,  compensation  of,  107. 
semi-annual  returns  of  fees,  etc.,  required,  465. 
fees  and  emoluments  retained  for  personal  services  not  to  exceed  $3500  a 

year,  467. 
fees  of,  in  California,  Oregon  and  Nevada,  467. 
additional  compensation  in  prize  causes,  468. 
accounting  to  the  Department  of  Justice,  468. 
accounts  of  to  be  certified  by  district  judge,  468. 

must  be  rendered  with  vouchers  and  items,  469. 
penalty  for  willfully  refusing  or  neglecting  to  perform  certain  duties,  470. 
expenses  of,  when  absent  from  place  of  business  as  a  witness  for  the  gov- 
ernment, 472. 
fees,  how  paid  and  recovered,  474. 

cannot  act  as  solicitor,  proctor,  attorney  or  counsel  in  any  United  States 
court,  447. 

penalty  for  so  doing,  447. 

COMMISSIONERS  OF  THE  CIRCUIT  COURTS.     See  Circuit  Courts. 
each  circuit  court  may  appoint,  107. 

no  marshal  or  deputy  marshal  can  act  as  commissioner,  107. 
circuit  courts  may  appoint,  385. 

power  of,  to  require  security  to  keep  the  peace,  etc.,  386. 
practice  before,  information  must  be  filed,  387. 

proceedings  on  examination,  388. 

recognizance  of  witnesses,  388. 

when  the  prisoner  must  be  committed,  388. 

duty  of  commissioner  to  make  return,  388. 
jnay  enforce  award  of  consuls,  etc.,  389. 

may  cause  the  arrest  of  offenders  against  the  United  States,  390. 
procedure  against  offenders,  390. 

information  under  oath,  390. 

notice  to  district  attorney,  391. 

same  as  state  practice,  392. 


INDEX.  •  0 

COMMISSIONERS  OF  THE  CIRCUIT  COURTS— conimued. 
procedure,  witnesses  and  fees,  392,  393. 

decision  of  the  commissioner,  393. 

commitment  by,  393. 

waiver  of  examination,  393. 

removal  of  prisoner  to  another  district,  394. 

meaning  of  the  word  "seasonably,"  394. 

bail,  amount  of,  395. 

recognizance,  what  it  should  contain,  395. 

extent  of  liability  of  sureties,  395. 

cop3^  of  process  to  be  returned,  396. 
may  discharge  poor  convicts  in  certain  cases,  396. 
may  arrest  foreign  seamen  in  certain  cases,  397. 

proceedings  in  case  of,  397,  399. 
powers  of,  under  statutes  relating  to  equal  rights,  401. 
bail  and  aflSdavits  may  be  taken  before,  402. 
may  take  depositions  de  bene  esse,  402. 
reasonable  notice  of  depositions,  403. 
party  may  waive  rights,  404. 
mode  of  taking  depositions  before,  404. 
transmission  of  depositions  to  court,  405. 

depositions  must  be  reduced  to  writing  by  commissioner  or  witness,  405. 
certificate  to  deposition,  405. 

what  must  be  shown  on  trial  before  deposition  can  be  used,  407. 
compelling  witnesses  to  appear  before,  407. 
make  oaths  and  acknowledgments,  408. 
may  issue  search  warrants  in  certain  cases,  408. 
may  issue  warrants  for  arrest  of  fugitives,  409. 
complaint  on  oath  before,  410. 
what  warrant  of  arrest  should  contain,  410. 
what  commissioner  must  certify,  410. 
fees;  accounts;  vouchers,  411. 
fees  as  supervisor  of  election,  412. 
how  to  obtain  allowance  and  payment,  413. 
fees  of,  470. 

CONSTITUTION, 

provisions  of,  relating  to  judicial  power,  1,  4. 
interpretation  of,  2. 
provided  for  federal  courts,  3. 
amendments  construing  judicial  power,  4. 
Mr.  Jay's  summary  of  reasons  for,  5. 
giving  jurisdiction  to  the  Supreme  Court,  7. 

original  jurisdiction  not  exclusive,  7. 
of  federal  courts,  duty  of  Congress  to  provide  for,  10. 

COURTS  OF  UNITED  STATES, 
jurisdiction  exclusive,  425,  435. 
may  issue  writs,  427. 

of  certiorari,  note,  428. 

of  supersedeas,  note,  428. 

other  writs,  note,  489. 
may  administer  oaths  and  punish  for  contempts,  435. 
contempt  of,  what  is,  note,  435. 

by  witnesses,  note,  435. 

by  officers,  note,  435. 
when  new  trial  may  be  granted,  436. 
may  issue  writs  of  injunction,  429. 

temporary  restraining  orders,  429. 
cannot  restrain  state  courts  except,  etc.,  430. 
when  laws  of  state  are  regarded  as  rules  of  decision  for,  430. 


886  •  INDEX. 

COSTS.     See  Fees;  Rules. 

when  not  recoverable  if  judgment  is  less  than  $500,  518. 

in  internal  revenue  cases,  519. 

when  claimant  of  propertj^  in  seizure  cases  not  entitled  to,  519. 

double,  when  allowed,  519. 

in  copj-right  suits,  519. 

in  patent  right  suits,  519. 

when  paid  by  defendant  in  prosecutions,  520. 

when  recoverabli!  by  defendant,  520. 

when  limited,  520. 

of  district  attorneys,  521. 

before  commissioner,  521. 

when  attorney,  etc.,  liable  for,  521. 

how  taxed,  bill  of,  521. 

sworn  to,  521. 
in  admiralty,  security  for,  required,  581. 

on  cross-bill,  590. 

by  intervenor,  584. 

COURT  OF  CLAIMS, 

appeal  from,  to  Supreme  Court,  heard  upon  the  record,  291. 

what  the  record  must  contain,  291. 

must  be  prepared  strictly  in  conformity  to  rule,  291. 

appeal  can  only  be  secured  on  application,  and  an  order  therefor,  291. 

appeals  from,  must  be  taken  within  ninety  days,  292. 

where  there  is  a  diminution  of  record,  293. 

writ  of  certiorari  may  issue  to  compel  a  return  of  record,  293. 

findings  of  fact  and  conclusions  of  law  by  the  Court  of  Claims,  293. 
sovereignties  cannot  be  sued,  a  fundamental  principle,  314. 
history  of,  note  4,  314. 
organization  and  sessions  of,  318. 
seal  of,  319. 

court  room,  etc.,  how  provided,  319. 
sessions,  when  held,  320. 
quorum  of,  320. 

officers  of,  320.  • 

salaries  of  clerks,  bailiffs,  etc.,  320. 
clerk's  bond,  320. 

clerk  to  disburse  the  contingent  fund,  320. 
clerk  to  report  to  Congress,  320. 
pleading,  practice  and  procedure  in,  321. 
jurisdiction  of  claims  founded  on  acts  of  Congress,  321. 
regulation  of  an  executive  department,  321. 
upon  contract,  321. 

set-offs,  counter-claims,  etc.,  321. 

claims  of  disbursing  officers,  321. 

claims  for  captured  property,  321. 

claims  in  Congress  transmitted,  322. 

set-offs  and  counter-claims,  how  enforced,  322. 

decree  for  accounting  officers,  322. 

procedure  in  cases  transmitted  from  any  head  of  a  department,  322. 

judgments  in  such  cases,  how  paid,  322. 
claims  growing  out  of  treaties,  324. 

not  to  be  prosecuted  by  parties  having  suit  in  another  court  for  the 
same,  324. 

in  case  of  aliens,  324. 

limitation  of  suits  on,  324. 

practice,  rules  of,  325. 

oaths  and  acknowledgments,  325. 

petition,  what  to  set  forth,  325,  359. 

■when  to  be  dismissed,  325. 


INDEX.  887 

COURT  OF  CLAmS— continued. 

claims,  burden  of  proof  as  to  loyalty,  325,  366. 

commission  to  take  testimony,  326,  368. 

power  to  call  upon  department  for  information,  326. 

when  testimony  not  to  be  taken,  326. 

witnesses  not  to  be  excliided  on  account  of  color,  326, 

interested,  excluded,  326. 

examination  of  claimant,  326,  371. 

testimony  taken  where  deponent  resides,  327,  372. 

witnesses,  how  compelled  to  attend,  327. 

cross-examination  of,  327,  372. 

payment  of  judgments,  328,  376. 

interest  on,  328,  377. 

interest  on  claims,  329. 

payment  of  judgment  full  discharge,  329,  378. 

final  judgment  a  bar,  329,  378. 

Attorney-General  to  transmit  petition  in  certain  cases  to  departments, 
329. 

practice  ;  appeals  to  Supreme  Court,  330. 

time  and  manner  of  taking,  330,  379. 

assignment  of,  330. 
on  contracts  of  Secretaries  of  War,  etc.,  331. 
three  judges  to  constitute  a  quorum,  331. 
costs  of  records,  how  paid,  331. 
claims  on  Chinese  indemnity  fund,  332. 

documents  may  be  used,  332. 

of  New  Mexico  mounted  volunteers,  332. 
jurisdiction  limited,  336. 

United  States  not  liable  for  damages  sustained  by  the  bombardment  of  a 
town,  338. 

for  damages  for  forcible  possession  of  land,  339. 

arising  from  a  collision,  339. 
no  jurisdiction  in  equity,  339. 

immunity  from  suit  an  incident  of  sovereignty,  339. 
jurisdiction  under  revenue  laws,  339. 
where  suit  is  on  contract,  340. 

or  by  au  informer,  340. 

or  by  a  manufacturer  to  recover  commission  on  stamps,  340. 
jurisdiction  of  claims  founded  upon  acts  of  Congress,  341. 

arising  under  a  regulation  of  an  executive  department,  341. 

in  case  of  a  claim  upon  express  contract,  341. 

in  case  of  a  claim  upon  implied  contract,  341. 
instances  of  implied  contracts,  341. 
where  the  court  refused  to  entertain  jurisdiction,  341. 

jurisdiction  does  not  extend  to  suits  against  the  United  States  for  infringe- 
ments of  patents,  344. 

in  case  of  claims  referred  to  it  by  Congress,  344. 

in  case  of  set-offs  and  counter-claims,  344. 

must  be  pleaded,  345. 

of  claims  of  disbursing  officer,  346. 

of  claims  for  proceeds  of  captured  and  abandoned  property,  346. 

presumptions  in  such  cases,  347. 

the  claimant  must  always  have  been  a  loyal  citizen,  348. 

of  claim  for  property  destroyed,  etc.,  by  the  army  or  navy,  343. 

all  private  claims  in  Congress  to  be  transmitted  to,  350. 
judgments  for  set-offs  and  counter-claims,  how  enforced,  350. 
trial  without  jury,  351. 

decrees  in  favor  of  paymasters,  etc.,  how  enforced,  351. 
when  head  of  department  may  cause  claims  to  be  transmitted  to,  353. 
procedure  in  cases  thus  transmitted,  354. 
claims  pending  in  other  courts,  355. 


888  INDEX. 

COURT  OF  CLAUIS— continued. 

aliens  may  prosecute  in  certain  cases,  355. 
limitation  of  actions  in,  356. 
when  the  time  commences  to  run,  357. 
practice,  may  establish  rules  of,  358. 
parties  to  suit  in,  360. 

suit  based  upon  assigned  chose  in  action,  361, 
pleading,  practice  and  procedure  in,  361. 
petition  may  be  amended,  364. 
consolidation  and  intervention,  practice,  365. 
when  cause  will  be  remanded  for  further  proof,  366. 
burden  of  proof  of  loyalty,  366. 
when  the  petition  will  be  dismissed,  366. 
aid  and  comfort  to  the  rebellion,  367. 
effect  of  pardon  and  amnesty,  367. 
burden  of  proof,  368. 
acts  of  aid  and  comfort,  368. 
application  for  a  commission,  369. 
mode  of  taking  depositions,  369. 
witnesses  may  be  re-examined,  369. 
objections  to,  when  taken,  370. 
may  call  upon  departments  for  information,  370. 
fees  of  commissioner  and  other  expenses,  371. 
by  whom  paid,  327,  372. 
claims,  when  forfeited  for  fraud,  328,  373. 
decree  in  favor  of  claimant,  373. 

regulations  prescribed  by  the  Supreme  Court  relating  to  appeals  from  the 
Court  of  Claims,  379. 

application  for  allowance  of,  379. 

within  what  time  to  be  made,  379. 
findings  of  fact  and  conclusions  of  law  filed,  etc.,  380. 
when  a  request  is  made  to  find  facts,  381. 
report  of  commissioner  of  facts  found,  382. 
remarks  of  an  eminent  American  lawyer  relating  to  the  Court  of  Claims,  383. 

COUNSEL, 

to  be  assigned  defendant  indicted  for  treason  or  other  capital  crime,  417. 

CRIMES.     See  Criminal  Cases. 

punishable  with  death,  where  tried,  437. 

begun  in  one  district  and  completed  in  another,  where  triable,  439. 

committed  on  the  high  seas,  where  triable,  439. 

CRIMINAL  CASES, 
practice  in,  415. 
statutes  relating  to,  415. 
indictments,  415. 

offences  against  the  elective  franchise,  415. 
perjury  before  a  court-martial,  415. 
charges  joined  in  one  indictment,  416. 
indictments,  defects  of  form  of,  416. 
several  indictments  against  the  same  person,  416. 
copy  of  mittimus  to  be  delivered  to  jailer,  416. 
writ  for  removal  of  prisoner  from  one  district  to  another,  416. 
no  writ  necessary  to  bring  into  court  a  person  in  custody,  417. 
peremptory  challenges,  excess  of,  417. 
where  a  prisoner  stands  mute,  417. 

copy  of  indictment,  etc.,  to  be  delivered  to  the  prisoner,  417. 
counsel  to  be  assigned  to  defendant,  417. 
verdict  for  less  offence  than  charged,  418. 
verdict  against  part  of  several  defendants,  418. 
indictments  remitted  to  and  from  circuit  and  district  courts,  418. 


INDEX.  889 

CRIMINAL  CASES— continued. 

remission  of  cause  from  district  to  circuit  court,  418. 

all  capital  cases  to  be  remitted  from  the  district  to  the  circuit  court,  419. 

capital  case  carried  to  the  Supreme  Court,  419. 

judgments  for  fines,  how  collected,  419. 

•what  crimes  are  infamous,  419. 

not  infamous,  420. 
consolidation  of  various  offences,  420. 
defects  of  form  in  indictments,  421. 

when  copy  of  indictment  must  be  delivered  to  the  defendant,  421. 
indictment  for  offences  not  capital,  422. 

when  defendant  may  be  found  guilty  of  less  offence  than  charged,  422. 
indictments  remitted  from  circuit  to  district  court,  and  vice  versa,  422. 
remission  from  the  district  court  in  diflScult  cases,  423. 
fine  or  penalty,  how  collected,  424. 

DEATH.     See  Practice. 

of  parties,  practice  in  case  of,  515,  516. 

DEMURRER.     See  Practice  and  Procedure  in  Suits  at  Law  ;  Practice  and  Proced- 
ure in  Equity  ;  Supreme  Court. 
to  bills,  amendment  after  allowance,  197,  200. 
to  plea,  must  have  certificate  of  counsel,  198. 
argument  on,  199. 
costs,  when  overruled,  200. 
setting  down  for  argument,  200. 

DEPOSITIONS.     See  Commissioners. 
de  bene  esse,  402. 
notice  of,  403. 
waiver  of  matters,  404. 
mode  of  taking,  404. 
transmission  of,  405. 
reduced  to  writing,  405. 
certificate  to,  405. 
conditions  for  the  use  of,  407. 
compelling  witness  to  attend  for,  407. 
oaths,  etc.,  408. 

DISTRICT  COURTS.     See  Jurisdiction. 

constitution  and  organization  of,  10,  19. 

judicial  districts,  10,  19. 

records,  where  kept,  25. 

clerks  of,  22-25. 

terms  and  sessions  of,  37-53. 

regular  sessions  of,  Alabama,  37. 

Arkansas,  37. 

California,  37. 

Connecticut,  37 

Colorado,  37. 

Delaware,  38. 

Florida,  38. 

Georgia,  38. 

Illinois,  38. 

Indiana,  38. 

Iowa,  39. 

Kansas,  39. 

Kentucky,  39. 

Louisiana,  40. 

Maine,  40. 

Maryland,  40. 


890  INDEX. 

DISTRICT  COURTS— contimted. 

regular  sessions  of,  Massachusetts,  40. 

Michigan,  40. 

Minnesota,  40. 

Jlississippi,  40. 

Missouri,  41. 

Nebraska,  41. 

Nevada,  41. 

New  Hampshire,  41.   • 

New  Jersey,  41. 

New  York,  41. 

North  Carolina,  42. 

Ohio,  42. 

Oregon,  43. 

Pennsylvania,  43. 

Rhode  Island,  43. 

South  Carolina,  43. 

Tennessee,  43. 

Texas,  44. 

Vermont,  44. 

Virginia,  44. 

West  Virginia,  45. 

Wisconsin,  45. 
changing  time  for  holding,  suits  not  affected  by,  45. 
always  open  for  certain  purposes  in  Wisconsin,  45,  46. 

Florida,  46. 

Indiana,  46. 
adjournments  for  the  trial  of  criminal  cases,  46. 

in  other  cases  in  Kentucky,  46,  47. 
Indiana,  46,  47. 
special  terms,  46. 

when  circuit  judges  may  act  as  district  judges  of,  in  Tennessee,  46. 
adjournment  of,  in  case  of  non-attendance  of  a  judge,  47. 
intermediate  terms  in  California,  Iowa  and  Tennessee,  47. 
business  of,  certified  to  circuit  court  in  case  of  disability  of  judge,  47. 
duty  of  clerk  in  relation  to  suits  brought  after  certificate  of  disability, 
power  of  judge  of,  rests  in  circuit  judge  in  case  of  disability,  49. 
when  a  circuit  judge  or  circuit  justice  may  act  in  certain  cases,  50,  51. 
jurisdiction  of,  54-69. 

special  and  limited,  54. 

crimes  and  offences,  54. 

in  case  of  piracy  and  of  suits  for  penalties  and  forfeitures,  55. 

suits  by  the  United  States,  55. 

suits  in  equity  to  enforce  internal  revenue  taxes,  56. 

admiralty  and  prize  causes,  56. 

suits  on  debentures,  96. 

suits  for  damages  against  conspirators,  96. 

suits  to  recover  offices,  97. 

suits  to  remove  officers,  97. 

suits  against  national  banks,  97. 

suits  against  consuls  and  vice-consuls,  97. 
general  principles  relating  to  admiralty,  57. 
jurisdiction  of  maritime  liens,  58. 

liens  created  by  contract,  59. 

suits  by  material  men,  59. 

suits  on  bottomry  bonds,  61,  62. 

suits  for  salvage,  62. 

petitory  suits,  63. 

suits  for  mariners'  wages,  64. 

suits  for  pilots'  wages,  65. 

suits  for  torts,  66. 


INDEX.  891 

DISTRICT  COVUTS—eontimied. 

jurisdiction,  suits  for  collisions,  67. 

suits  by  libel,  68. 

suits  for  assault  and  battery,  68. 

suits  for  injury  to  passengers,  69. 
jurisdiction  in  bankruptcy,  98. 
appeals  from  to  circuit  courts,  98. 
time  of  taking  appeals  to  circuit  court,  98. 
what  must  be  certified  by  clerk  on  appeals,  99. 
what  may  be  omitted,  99. 
appeals  to  Supreme  Court,  100. 

in  prize  cases,  100. 

when  taken,  100. 

when  taken  by  both  parties,  100. 

DISTRICT  ATTORNEYS.     See  Fees. 
appointment  of,  31. 
duty  of,  31. 

to  prosecute  for  crimes,  33. 
the  recognized  officer  of  the  government,  33. 
fees  and  compensation  of,  in  New  York,  34,  35. 

in  California,  35. 
term  and  oath  of  office,  36. 
to  make  semi-annual  return  of  fees,  etc.,  465. 
not  to  retain  to  exceed  $6000  a  year,  465. 
compensation  of,  in  southern  district  of  New  York,  466. 

in  Oregon  and  Nevada,  466. 

in  prosecutions  under  revenue  laws,  466. 
allowance  made  for  personal  expenses,  468. 
must  pay  surplus  of  fees  and  emoluments  at  the  time  of  semi-annual  report, 

468. 
Attorney-General  must  cause  the  returns  to  be  carefully  examined,  468. 
accounts  of,  must  be  certified  by  the  district  judge,  468. 
must  render  accounts  with  vouchers  and  the  items  thereof,  469. 
how  paid,  etc.,  474. 

DIVISION  OF  OPINION.     See  Certificate  of  Division. 
review  by  the  Supreme  Court  on  certificate  of,  252. 
court  may  affirm,  reverse  or  modify,  252. 
in  criminal  cases,  253. 
the  specific  point  must  be  stated,  253. 
only  the  points  stated  are  properly  before  the  court,  254, 
the  question  must  be  one  of  law,  254. 
certificate  in  criminal  cases,  254. 
when  the  Supreme  Court  is  divided  on,  255. 

EQUITY.     See  Writs  of  Error  and  Appeal. 
appeals  in,  when  allowed,  246. 

matter  in  dispute  must  exceed  $5000,  246. 

from  final  decrees,  246. 

what  decrees  are  not  final,  247-249. 

time  for  appeal  limited,  251. 

where  want  of  jurisdiction  is  apparent,  251. 

right  of  appellant  to  dismiss,  252. 

when  dismissed  of  course,  252. 
Court  of  Claims  no  jurisdiction  in,  339. 
jurisdiction  of  United  States  courts  cannot  be  sustained  where  there  is  an 

adequate  remedy  at  law,  433. 
practice  in,  note,  433. 
suits  in,  when  maintained,  433. 
what  should  be  entered  upon  the  final  record  in,  447. 


892  INDEX. 

EVIDENCE.     See  Witnesses;  Depositions. 

witnesses  cannot  be  excluded  on  account  of  color,  475. 

laws  of  state  generally  rules  of  decision  as  to  the  competency  of  witnesses, 

475. 
of  witnesses  before  either  house  of  Congress  or  any  committee  of  either 

house,  when  not  to  be  used  against  him  in  a  criminal  proceeding,  476. 
when  the  pleading  of  a  party  or  a  discovery  obtained  in  a  judicial  procedure 

cannot  be  used  against  him,  47G. 
mode  of  proof  in  common  law  actions,  476. 

equity  and  admiralty,  47G. 
depositions  de  bene  esse,  477. 
how  taken,  478. 
transmission  to  court,  478. 
under  dedimus  potestatum,  478. 
in  perpetuam  rei  memoriam,  479. 
subpcEnas  for  taking,  479. 
subpoenas  duces  tecum,  479. 
when  witnesses  required  to  attend,  480. 
depositions  in  District  of  Columbia  to  be  used  elsewhere,  481. 
notice  in  case  or  oral  examination,  note,  481. 
execution  of  commission,  under  Equity  Rule  67,  note,  481. 
commission,  written  interrogatories  filed,  481. 

what  the  return  should  show,  481. 
depositions  in  District  of  Columbia  taken  without  consent,  482. 
manner  of  taking,  etc.,  482. 
fees  of  witnesses,  482. 
letters  rogatory  from  United  States  courts,  483. 
subpcenas  to  run  into  other  districts,  483. 
witnesses  on  behalf  of  United  States,  483. 

mode  of  determining  distance  of  travel,  note,  483. 
for  indigent  defendants  in  criminal  cases,  484. 
recognizance  of,  in  criminal  cases,  484. 

may  be  required  by  district  attorney,  484. 
copies  of  books  and  papers  in  any  executive  department,  when  evidence, 
485. 

of  documents,  etc.,  in  ofifice  of  Solicitor  of  the  Treasury,  486. 
of  papers,  etc  ,  executed  by  the  Comptroller  of  the  Currency,  486. 
certificate  of  the  Comptroller  of  the  Currency  of  organization  of  national 

bank,  486. 
transcript  of  books  of  the  Treasury  Department,  486. 

in  case  of  embezzlement,  487. 
copies  in  return  office  of  Department  of  Interior,  488. 
of  Post  Office  records  and  Auditor's  statements,  488. 
of  records  in  General  Land  OflSce,  489. 

Patent  Office,  489. 
of  foreign  letters  patent,  489. 

of  specifications  and  drawings  by  Commissioner  of  Patents,  489. 
of  journals  of  Senate  or  House  of  Representatives,  490. 
of  records  in  office  of  United  States  consuls,  490. 
of  records  transcribed  into  new  books  by  clerks,  in  certain  cases,  490, 

491. 
in  case  of  loss  of  original  record,  491,  492. 
authentication  of  legislative  and  judicial  proceedings,  493. 
states  may  prescribe,  note,  494. 
seal  required,  note,  494. 
construction  of  the  statute,  note,  494. 
records,  what  may  be,  495. 

clerk's  certificate,  note,  495. 
judge's  certificate,  note,  495. 
effect  of,  note,  496. 

in  another  state,  note,  496. 


•  INDEX.  893 

EVIDENCE— con<m«fc?. 

presumption  of  judgment  in  force  on  writ  of  error  or  appeal,  note,  497. 
of  a  judgment  is  merely  interlocutory,  497. 

■when  a  decree  in  relation  to  land  not  evidence  in  another  state,  497. 
judgments  conclusive  where  the  court  has  jurisdiction,  497. 

cannot  be  impeached  for  the  ignorance,  etc.,  of  attorneys,  497. 
presumptions  as  to  service  of  original  process,  498. 

record  showing  personal  service  of  original  process  may  be  rebutted,  493. 
recital  of  record  may  be  controverted,  498. 
of  service  of  process  out  of  state,  498. 

by  publication,  498. 
in  case  of  voluntary  appearance,  499. 
in  case  of  decrees  for  divorce,  500. 

judgments  conclusive  in  the  state  where  rendered,  500. 
what  records  of  public  officer  may  be  certified,  501. 
copies  of  foreign  records,  502. 
Little  &  Brown's  Edition  of  Statutes,  502. 
burden  of,  in  case  of  seizure,  503. 

in  case  of  title  to  mining  lands,  503. 

EXECUTION.     See  Procedure. 

when  may  run  into  any  part  of  the  state,  522. 
in  favor  of  United  States,  522. 

be  stayed,  522. 
against  revenue  officers,  523. 
imprisonment  on,  when  restrained,  523. 
when  jail  limits,  allowed,  523. 
when  goods  taken  on,  must  be  appraised,  524. 
in  case  of  death  of  marshal  after  issue  of,  524. 

FEES.     See  Commissioners. 

of  commissioners;  accounts,  vouchers,  411. 

provisions  of  the  statute  relating  to,  556-465. 

of  attorneys,  solicitors  and  proctors,  456-458. 

of  district  attorney  in  suits  under  the  revenue  laws,  458. 

in  defending  revenue  laws,  458. 
of  clerks,  458. 
of  marshals,  460. 

in  particular  cases,  463. 
of  officers — no  per  diem  allowance,  464. 
semi-annual  return  of,  to  be  made  to  Attorney-General,  465. 

what  to  be  included  by  district  attorney  and  marshal,  465. 
district  attorney  not  to  retain  fees  exceeding  $6000,  465. 
of  district  attorney  of  southern  district  of  New  York,  466. 

and  marshal  of  Oregon  and  Nevada,  466. 

in  case  of  prosecutions  for  fine  or  penalty  under  revenue  laws,  466. 
of  clerks ;  colnpensation  retained  by,  467. 

in  California,  Oregon  and  Nevada,  467. 
of  marshal,  not  to  retain  fees  and  emoluments  exceeding  $6000  a  year,  467. 

additional  compensation  in  prize  causes,  468. 

allowance  for  personal  compensation,  468. 

payment  of  surplus  into  the  treasury,  468. 

auditing  accounts  of,  468. 

must  be  certified  by  the  district  judge,  468. 

the   President  may  allow  for   extraordinary  expenses  of  a  ministerial 
officer,  469. 

vouchers  and  items  required,  before  allowance  of  bill  of  costs,  payable 
out  of  the  money  of  the  United  States,  469. 
of  commissioners,  470. 
of  witnesses,  471. 
no  officer  of  court  entitled  to,  472. 


894  INDEX. 

FEES — continued. 

of  clerks  and  othtr  officers  when  sent  away  as  witnesses,  472. 

of  seamen  sent  home  as  witnesses,  472. 

of  jurors,  473. 

of  printers,  473. 

how  paid  and  recovered,  474. 

FORMS  IN  EQUITY, 

bill  to  recover  a  legacy,  625. 

bill  to  restrain  infringement  of  copyrights,  627. 

of  patent-right,  630, 

title  established  by  previous  suits,  etc.,  633. 
bill  for  an  injunction,  641. 
bill  for  a  discovery  and  to  enjoin,  644. 

FORMS  FOR  CIRCUIT  COURTS, 
order  for  subpoena,  647. 
subpoena  to  appear  and  answer,  647. 
form  of  appointment  to  serve  a  subpoena,  648. 
precipe  for  appearance,  648. 
ord«r  for  appearance,  649. 
motion  for  leave  to  file  supplemental  bill,  649. 
answer,  common  form,  649. 
order  on  exceptions,  650. 
supplemental  bill  in  a  patent  cause,  651. 
second,  655. 

amendment  to  a  bill,  657. 
general  demurrer  to  bill,  658. 
demurrer  for  want  of  equity,  659. 

for  multifariousness,  659. 

on  the  ground  of  Statute  of  Frauds,  660. 

certificate  to,  660. 

verification  of,  660. 
plea;  certificate;  verification,  660, 
answer  to  bill,  662. 
exceptions  to  answer,  663. 
plea  and  answer,  663. 

of  former  suit  pending,  664. 
replication,  666. 
order  of  reference  to  master,  666. 

to  master  to  report,  etc.,  667. 

to  report  account,  etc.,  668. 
master's  report,  669. 
exceptions  to  report,  669. 
order  on  attachment  of  person,  670. 
order  in  case  of  contempt,  671. 
order  on  conviction  for  contempt,  671. 
order  to  refer  second  answer  on  old  exceptions,  673. 
order  to  refer  when  defendant  does  not  submit  to  exceptions,  673. 
order  for  further  answer,  673. 

interrogatories  for  examination  of  a  party  in  contempt,  674. 
order  for  commitment  of  defendant,  674. 
order  for  marshal  to  arrest  for  contempt,  675. 
order  for  sequestration,  676. 
order  for  examination  of  defendant,  676. 
order  for  attachment  on  third  answer,  677. 
order  for  temporary'  injunction,  677. 
order  allowing  complainant  to  dismiss  his  bill,  678. 
order  to  pay  money  into  court,  678. 
order  directing  plea  to  stand  for  answer,  678. 
order  of  reference  on  plea  of  former  suit  in  bar,  679. 
order  for  cause  to  stand  over  to  add  new  parties,  679. 


INDEX.  895 

FORMS  FOR  CIRCUIT  COVRTS— continued. 

order  for  cause  to  stand  over  to  supply  proofs,  679. 

master's  report  upon  exceptions  to  answer,  680. 

exceptions  to  master's  report  on  exceptions,  680. 

master's  report  on  sufiBciency  of  defendant's  examination,  680.  " 

commission  to  take  testimony,  681. 

commission  of  dedimus  potestatum,  682, 

afiSdavit  for  habeas  corpus  ad  testificandum,  683. 

abstract  of  pleading,  683. 

agreement  to  submit  cause  on  written  argument,  684. 

abstract  of  pleadings  and  points  in  issue,  684. 

briefs  and  points  on  hearing,  685. 

decree  on  staying  infringement  after  verdict  establishing  a  patent,  686. 

decree  of  validity  of  patent,  etc.,  687. 

decree  of  Supreme  Court  where  it  has  no  jurisdiction,  687. 

decree  of  perpetual  injunction  upon  printing,  etc.,  689. 

decree  of  perpetual  injunction  upon  making  machine,  etc.,  689. 

decree  of  perpetual  injunction  of  use  of  trade-marl^,  691. 

order  staying  use  of  trade-mark,  691. 

order  for  temporary  injunction,  692. 

final  decree  dismissing  bill,  693. 

decretal  order,  693. 

master's  summons,  695. 

master's  report,  695. 

exceptions  to  master's  report,  695. 

order  for  feigned  issue,  696. 

final  decree,  697. 

taxed  costs,  698. 

perpetual  injunction,  699. 

revised  decree,  699. 

enrolled  decree,  700. 

taxed  costs  to  plaintiff:  law,  701. 

execution,  702. 

taxed  costs  non  pros,  703. 

taxed  costs,  default,  704. 

FORMS  IN  ADMIRALTY, 
libel  for  salvage,  704. 
stipulation  for  costs,  705. 
attachment  and  monition  in  rem,  706. 
claim  by  the  agents  of  foreign  underwriters,  707. 
stipulation  for  costs  by  claimant,  710. 
order  of  court  on  the  return  of  mesne  process,  711. 
proclamation  on  return  of  process  in  rem,  712. 
replication  to  claim  and  answer,  712. 

claim  by  the  United  States  attorney  on  behalf  of  the  United  States,  712. 
libel  for  mariner's  wages,  714. 
libel  in  a  cause  for  personal  damage,  716. 
libel  in  personam  on  contract,  718. 
claim  and  answer,  719. 
citation,  with  attachment  of  goods,  720. 
citation,  721. 
claim,  721. 

claim ;  forfeiture,  722. 
stipulation,  723. 

stipulation  in  proceedings  for  forfeiture,  723. 
stipulation  by  claimant  in  case  of  libel  by  United  States,  725. 
stipulation  for  restitution  of  attached  property,  725. 
attachment  in  personam,  726. 
writ  of  appraisement,  727. 
writ  to  restore,  728. 


896  INDEX. 

FORMS  IN  ABmRALTY—conlinued. 
return  to  writ  to  restore,  728. 
order  for  process  on  libel,  729. 
■warrant  of  arrest  and  monition,  729. 
bond  b}-  claimant,  730. 
default  and  order  of  reference,  732. 
report  on  reference,  732. 
final  decree,  733. 
proctor's  costs,  734. 

clerk's  costs  ;  on  default  and  reference,  735. 
enrollment  of  decree,  736. 
decree  of  condemnation,  737. 
execution,  737. 

direction  by  the  clerk  endorsed  on  execution,  738. 
marshal's  return,  739. 
warrant  of  arrest  in  personam,  739. 
marshal's  citation,  740. 
venditioni  exponas,  740. 
monition,  742. 
marshal's  notice,  742. 
final  decree  pro  confesso,  V43. 
clerk's  bill  of  fees,  744. 
information  ;  seizure,  745. 
information,  another  form,  747. 
attachment  on  information,  748. 
marshal's  return  to  writ,  749. 
marshal's  notice,  749. 
final  decree  pro  confesso,  750. 
clerk's  costs,  751. 
warrant  to  sell,  752. 

information,  another  form  ;  seizure,  753. 
attachment  in  rem  for  forfeiture,  756. 
taxed  bill  of  costs,  757. 
bills  of  taxed  costs,  759. 
marshal's  bill,  760. 
clerk's  bill,  761. 

United  States  district  attorney's  costs,  762. 
certificate  of  license  as  counsellor,  762. 
certificate  to  transcript  of  record,  763. 

FORMS  FOR  REMOVAL  OF  CAUSES, 

petition  for  removal  in  criminal  cases,  764. 
certiorari  for  removal  of  case  from  state  court,  765. 
petition  for  removal  under  section  2,  act  March  3,  1875,  766. 
bond  on  removal,  767. 

petition  for  removal  from  state  court  to  circuit  court  under  Revised  Stat- 
utes, 767. 
affidavit  of  prejudice  or  local  influence  under  Revised  Statutes,  769. 
bond  to  accompany  petition,  769. 

FORMS,  COMMISSIONERS', 

order  for  appointment  of  commissioner,  785. 
complaint,  common  form,  785. 

for  breaches  of  the  peace,  786. 
warrant  to  apprehend,  786.  • 

return  of  marshal,  787. 
subpoena,  787. 
return  by  marshal,  787. 

recognizance  of  prisoner  pending  examination,  788. 
commitment  pending  examination,  789. 
recognizance  of  witnesses,  790. 


INDEX.  897 

FORMS,  COMMISSIONERS'— fo?!/?«?<c(f. 
recognizance  for  appearance,  791. 
mittimns,  common  form,  793. 
affidavit  of  attendance,  793. 
order  to  pay  witness  fees,  793. 
transcript  of  docket,  793. 

affidavit  and  order  for  examiner  de  bene  esse,  for  plaintiff,  794. 
notice  of  examination  de  bene  esse,  795. 
subpoena,  796. 

caption  for  depositions  de  bene  esse,  796. 
certificate  to  depositions  de  bene  esse,  797. 
commission  to  take  depositions,  798. 
writ  of  habeas  corpus,  799. 
commission  dedimus  potestatum,  799. 

FORMS  FOR  SUPREME  COURT, 

motion  for  leave  to  file  a  bill,  801. 

bill  for  settlement  of  boundary  between  states,  801. 

subpoena  in  a  suit  by  one  state  against  another,  804. 

return  of  service  of  subpoena  on  a  state,  805. 

precipe  for  appearance  by  a  solicitor,  805. 

demurrer  for  want  of  jurisdiction,  805. 

certificate  to  demurrer,  806. 

affidavit  to  demurrer,  806. 

motion  to  dismiss  for  want  of  jurisdiction,  806. 

bill  by  one  state  against  another  to  settle  boundary,  807. 

bill  to  restrain  use  of  trade-mark,  808. 

plea  and  certificate,  815. 

answer,  815. 

verification  of  answer,  818. 

assignment  of  errors,  818. 

joinder  in  error,  819. 

precipe  for  appearance  of  defendant,  819. 

receipt  of  record,  820. 

bond  for  clerk's  fees,  820. 

writ  of  error  to  state  court,  821. 

to  federal  court,  822. 
citation,  823. 
bond  on  appeal,  823. 

bond  on  certificate  of  division  of  opinion,  824. 
judgment  on  writ  of  error  to  state  court,  825.  , 

to  federal  court,  826. 
decree  on  appeal,  826. 
mandate  to  state  court,  826. 
decree  of  Supreme  Court  where  no  point  has  been  duly  certified  on  division 

of  opinion,  827. 
judgment  of  Supreme  Court  on  certificate  of  division,  828. 
decree  and  order  on  default,  828. 
mandate,  829. 

decree  annulling  former  decree,  830. 

order  and  decree  where  the  court  has  no  jurisdiction,  830. 
suggestion  for  prohibition,  831. 
writ  of  prohibition,  833. 
supersedeas  from  Supreme  Court,  834. 
writ  of  mandamus,  836. 
injunction,  838. 

certificate  of  division  of  opinion,  839. 
certiorari,  841. 

petition  for  habeas  corpus,  843. 
return  to  writ  of  habeas  corpus,  844. 
writ  of  habeas  corpus  ad  testificandum,  844. 

57 


898  INDEX. 

FORMS  FOR  COURT  OF  CLAIMS, 
petition,  general  frame,  845. 

petition  in  case  transmitted  from  the  head  of  a  department,  846. 
petition,  fuller  form,  846. 
notice  by  the  clerk  to  plaintiff,  851. 
notice  to  the  Attorne3'-General,  852. 
plea  of  limitations,  852. 
traverse,  852. 

subpoena  for  wi'nesses,  853. 
instructions  for  taking  depositions,  853. 

findings  of  fact,  conclusions  of  law  and  judgment  thereon,  858. 
judgment  for  claimant,  873. 

for  defendants,  873. 
order  on  motion  for  intervention,  874. 
ruling  upon  motion  for  a  new  trial,  874. 

judgment  confirming  report  of  referee  and  judgment  thereon,  874. 
certified  transcript  of  pleadings,  etc.,  875. 
attested  judgment,  875. 
certified  judgment,  876. 
application  for  appeal  and  order  allowing  same,  876. 

another  form,  877. 

HABEAS  CORPUS, 

when  federal  courts  may  issue,  304. 

provisions  of  the  Revised  Statutes,  305. 

not  issued  of  course,  307. 

jurisdiction  must  be  shown,  307. 

allowance  of,  direction,  return,  307. 

proceedings  governed  by  common  law,  309. 

court  cannot  inquire  iato  facts,  309. 

appeals  to  the  circuit  court,  311. 

appeals  from  the  circuit  court  to  the  Supreme  Court,  311. 

in  cases  involving  the  law  of  nations,  312. 

appeals  in  case  of,  how  taken,  313. 

INDICTMENT.     See  Criminal  Cases. 

copy  of  to  be  delivered  to  defendant  in  certain  cases,  417. 
remitted  by  circuit  and  district  courts,  418. 

in  difficult  cases  to  circuit  court,  418. 

in  other  cases,  419. 

INJUNCTION.     See  Courts  of  the  United  States. 

when  granted  by  the  Supreme  Court  or  its  justices,  429. 

temporary  restraining  orders,  429. 

to  stay  proceedings  of  state  courts,  when  granted,  430. 

INSTANCE  CAUSES,     ^qq  Admiralty  ;  Pleading;  Practice  and  Procedure. 
libels  in,  83. 

should  show  facts,  83. 

should  state  ground  of  forfeiture,  83. 

INTEREST.     See  Procedure. 

on  bonds  given  for  duties,  518. 

on  balances  due  Post-Office  Department,  518. 

on  debentures,  518. 

on  judgments,  518. 

.JUDICIARY  DEPARTMENT, 
of  government,  2. 
views  of  Mr.  Story,  2. 
extent  of,  3. 

constitutional  provision,  3. 
amendment  of,  4. 
Alexander  Hamilton's  views,  note,  4. 


INDEX. 

JUDICIAL  DISTRICTS,' 

provisions  of  statutes  creating,  10,  19. 
states  constituting  one,  California,  10. 
Colorado,  10. 
Connecticut,  10. 
Delaware,  10. 
Indiana,  10. 
Iowa,  10. 
Kansas,  10. 
Kentucky,  10. 
Louisiana,  10. 
Maine,  10. 
Maryland,  10. 
Massachusetts,  10. 
Minnesota,  10. 
Nebraska,  10. 
Nevada,  10. 
New  Hampshire,  10. 
New  Jersey,  10. 
Oregon,  10. 
Rhode  Island,  10. 
Vermont,  10. 
"West  Virginia,  10. 
states  constituting  more  than  one,  11-19. 

Alabama,  11. 

Arkansas,  11. 

Colorado,  11. 

Florida,  11. 

Georgia,  11. 

Illinois,  12. 

Iowa,  12. 

Michigan,  12. 

Mississippi,  14. 

New  York,  15. 

North  Carolina,  15. 

Ohio,  15. 

Pennsylvania,  16. 

South  Carolina,  17. 

Tennessee,  17. 

Texas,  18. 

Virginia,  19. 

Wisconsin,  19. 

JUDGES, 

appointment  of,  10,  20. 

district,  in  Iowa,  12. 

in  each  district,  20. 

in  Colorado,  20. 

in  Texas,  20. 

in  Alabama,  21. 

in  Georgia,  21. 

in  Tennessee,  21. 
of  circuit,  when  to  act  as  district  judge  in  Tennessee,  46. 
not  to  practice  law,  25. 
salary  of  district,  21,  22,  25. 

after  resignation  in  certain  cases,  25. 
district,  in  cases  of  disability,  51,  52. 

in  case  they  are  interested  in  suits  pending,  52. 

in  case  of  vacancy  in  the  office,  52. 
when  applied  to  any  circuit  includes  justices,  101. 
of  circuit  courts,  salary  of,  102. 

in  New  York,  103. 


899 


900  INDEX. 

JVDGES— continued. 

may  set  apart  in  circuit  courts,  103. 

of  circuit  and  district  courts  of  New  York,  or  either  of  them,  in  criminal 

cases,  103. 
of  district  courts  may  sit  to  review  his  own  opinion,  in   the  circuit  court, 

104. 
of  circuit  courts  when  interested  in  suit  pending,  104. 

of  circuit  and  district  courts,  must  concur  in  the  appointment  of  clerks,  105. 
oath  of  office,  42'J. 
prohibited  from  practicing  law,  427. 
resigning  entitled  to  salary  in  certain  cases,  427. 
of  Supreme  Court  may  issue  writs  of  ne  exeat,  428. 

of  United  States  courts  may  make  arrests  for  offences  against  the  United 
States,  436. 

hold  to  security  of  the  peace,  436. 

enforce  awards  of  consuls,  436. 
JUDGMENTS.     See  Circuit  Court  ,•  District  Court ;   Court  of  Claims. 
of  circuit  courts,  liens  of,  183. 
of  district  courts,  how  reviewed,  98. 
of  Court  of  Claims,  328,  329,  376. 

how  paid,  322,  378. 

appeal  from,  291. 
remedies  upon,  in  a  foreign  state,  499. 
for  divorce  in  a  foreign  state,  499. 
wherf  invalidity  of,  appears  from  the  record,  499. 
in  suits  under  postal  laws,  516. 

on  debentures,  517. 

on  bonds  for  duties,  517. 
in  equity,  517.  - 

for  duties,  etc.,  517. 
interest  on,  518. 
liens  of,  how  limited,  518. 
JURISDICTION  OF  SUPREME  COURT.     See  Supreme  Court. 
power  vested  in,  3. 
extent  of  power,  3. 

in  what  cases  it  has  original  jurisdiction,  7. 
in  what  cases  it  has  appellate  jurisdiction,  7. 
original  jurisdiction  not  exclusive,  7. 

at  law  and  in  equity,  227-238. 
when  a  state  is  a  party,  230. 

on  whom  service  of  process  should  be  made,  228. 
suit  by  a  state  against  a  corporation,  230. 
when  process  must  be  served,  228. 
frame  of  bills  in  equity,  231. 
essentials  of  a  bill,  229. 
leave  to  file  a  bill,  232. 
demurrer  for  want  of  jurisdiction,  234. 

certificate  of  counsel  and  affidavits  of  defendant  required  to  a  demurrer  or 
plea,  235. 

JURISDICTION  OF  CIRCUIT  COURTS.     See  Circuit  Courts. 
original  and  appellate,  108-174. 

suits  of  a  civil  nature  at  common  law  or  in  equity,  109. 
injunctions  to  state  courts,  when  prohibited,  111. 
value  of  the  matter  in  dispute.  111. 

suits  arising  under  the  Constitution  or  laws  of  the  United  States,  113. 
controversy  arising  between  citizens  of  different  states,  114. 
who  are  citizens,  115. 
parties  merely  nominal  or  formal,  116. 

proper  citizenship  of  the  parties  should  appear  in  the  record,  117. 
nominal  and  formal  parties,  118, 


INDEX.  901 

JURISDICTION  OF  CIRCUIT  COURTS— continued. 
evidences  of  citizenship,  118. 
slaves  of  African  descent  not  citizens,  118. 
citizenship  of  executors  and  administrators,  118. 
parties  having  only  equitable  interests,  119. 
in  equity,  when  citizenship  not  important,  119. 
when  parties  may  be  dismissed,  121. 
corporations  are  citizens,  121. 

burden  of  proof  of  citizenship  of  corporations,  122. 
when  the  United  States  are  plaintiffs,  122. 
when  citizens  of  the  same  state  claim  lands  under  grants  of  different  states, 

123. 
controversy  between  citizens  of  a  state  and  foreign  states,  citizens  or  sub- 
jects, 123. 
exclusive  cognizance  of  certain  crimes,  124. 

where  the  punishment  is  death,  126. 
capital  cases  remitted  from  the  district  to  the  circuit  courts,  127. 
offences  on  the  high  seas,  where  triable,  127. 

in  other  cases,  where  triable,  128. 
where  a  civil  suit  must  be  brought,  128. 
attachment  of  property  will  not  confer  jurisdiction,  128. 
where  service  of  process  may  be  made  by  publication,  129. 
where  all  the  defendants  cannot  be  served,  130. 
when  a  proper  party  may  be  omitted,  131. 
formal  parties  may  be  dispensed  with,  132. 
suits  on  contract  in  favor  of  an  assignee,  132. 
suits  by  endorsees,  135. 
corporations  citizens,  135. 
when  corporate  bonds  and  coupons  not  subject  to  the  statute  relating  to 

promissory  notes  or  bills  of  exchange,  135. 
where  a  corporate  bond  is  payable  to  bearer,  136. 
facts  showing  jurisdiction  must  be  averred,  136. 
implied  and  resulting  powers  of,  138. 
when  a  statute  is  a  substitute  for  a  former  one,  138. 

suits  under  import,  revenue  and  postal  laws,  for  the  enforcement  of  penal- 
ties and  condemnation  of  property,  139. 
suits  for  the  enforcement  of  liens  or  the  removal  of  incumbrances,  139. 
suits  for  seizure  under  the  slave-trade  laws,  140. 
suits  arising  under  the  patent  and  copyright  laws,  140. 
suits  by  and  against  national  banks,  142. 
suits  by  receivers  of  national  banks,  143. 
suits  to  redress  the  deprivation  of  rights,  144. 
appellate,  144. 

decree  must  be  final,  145. 

cause  must  be  of  equity  or  admiralty  jurisdiction,  145. 

when  appeal  will  be  dismissed,  145. 
on  error  to  judgments  of  district  courts,  145. 
in  cases  transferred  from  district  courts,  146. 
court  always  open  for  certain  business,  146. 
on  removal  of  causes  from  state  courts,  147. 

two  classes  of  causes  may  be  removed,  148.  ♦ 

all  suits  of  a  civil  nature,  148. 

suits  arising  under  the  Constitution  or  laws  or  treaties  of  the  United 
States,  149. 

either  party  may  remove  when  the  controversy  is  between  citizens  of 
different  states,  150. 

when  one  party  is  an  alien,  153. 

manner  of  removal,  153. 

when  the  petition  for  removal  must  be  filed,  154. 

the  statute  must  be  substantially  complied  with,  155. 

sufficiency  of  the  bond  given  on  removal,  155. 


902  INDEX. 

JURISDICTION  OF  CIRCUIT  COVRTS— continued. 

on  removal  of  causes,  state  court  may  pass  upon  the  sufficiency  of  the  ap- 
plication for,  156. 

personal  citizenship  of  the  parties  required,  157. 

when  the  controversy  is  wholly  between  citizens  of  different  states,  157. 

on  account  of  prejudice  or  local  influence,  157. 

application  must  be  made  to  state  court  of  original  jurisdiction,  158. 

in  case  of  suits  against  corporations,  158. 

in  case  of  persons  denied  any  civil  right,  160. 

when  the  petitioner  is  in  actual  custody  under  process  of  a  state  court, 
in  such  a  case,  161. 

in  case  of  suits  or  prosecutions  against  revenue  and  other  federal  officers, 
162. 

in  case  of  suits  to  determine  the  right  to  an  office  in  certain  cases,  164. 

process  of  attachment,  injunction,  etc.,  not  affected  by,  165. 

when  suit  may  be  dismissed  or  remanded,  166. 

when  a  copy  of  the  record  should  be  filed,  168. 

refusal  of  clerk  to  furnish  record,  168. 

when  writ  of  certiorari  will  issue  to  compel  clerk,  168. 
when  issues  of  fact  tried  by  jury,  when  by  the  court,  169. 
may  certify  a  division  of  opinion  to  Supreme  Court,  170. 

point  of  division  must  be  stated,  171. 

question  must  relate  to  a  point  of  law  and  not  of  fact,  171. 

where  point  certified  is  one  of  practice  or  discretion,  171. 
writs  of  error  in  criminal  cases  to  district  courts,  172. 

return  of  proceedings  thereon,  173. 
of  Court  of  Claims,  330-350. 

under  revenue  laws,  339. 

of  claims  founded  upon  acts  of  Congress,  341. 

founded  upon  a  regulation  of  an  executive  department,  341. 

upon  an  express  contract,  341,  342. 

implied  contract,  343. 

in  case  of  claims  referred  to  it  by  Congress,  344. 

by  disbursing  officer,  346. 

for  proceeds  of  captured  property,  etc.,  346. 

for  property  destroyed  by  the  army  or  navy,  346. 

in  Congress,  350. 
of  courts,  of  the  person,  note,  498. 
presumptions  of,  from  recital  in  the  record,  note,  498. 
voluntary,  general  appearance  confers,  499. 
in  case  of  foreign  attachment,  499. 
of  federal  courts,  when  exclusive,  425. 
of  district  courts,  54-69. 

special  and  limited,  54. 

crimes  and  offences,  54. 

of  piracy,  55. 

of  prosecutions  for  penalties  and  forfeitures,  55. 

of  suits  by  the  United  States  to  enforce  revenue  taxes,  56. 

of  admiralty  and  prize  causes,  56,  57. 

of  suits  for  maritime  liens,  58. 

of  suits  by  material-men,  59. 

of  suits  on  bottomry  bonds,  61,  62. 

of  suits  for  salvage,  62. 

of  suits  for  possession  of  ship,  etc.,  63. 

of  suits  for  mariners'  wages,  64. 

of  suits  for  pilot's  wages,  65. 

of  suits  for  torts,  66. 

of  suits  for  collisions,  67. 

of  suits  by  libel  against  vessel  and  master,  68. 

of  suits  for  assault  and  battery,  68. 

of  suits  for  injury  to  passengers,  69. 


INDEX.  903 

JURIES, 

qualification  of  jurors,  note,  449. 

pay  of  jurors,  449. 

challenges,  note,  449. 

mode  of  drawing,  449,  450. 

how  jurors  apportioned,  450. 

talesmen  for  petit,  450. 

special,  in  circuit  courts,  451. 

in  northern  New  York,  451.  , 

petit,  in  Vermont,  451. 

number  of  grand  jurors,  451. 

federal  courts  may  determine  the  number  to  be  summoned,  note,  451. 

foreman,  appointment  and  powers  of,  452. 

grand,  when  summoned,  452. 

when  discharged,  452. 
jurors  not  to  be  summoned  oftener  than  once  in  two  years,  452. 
grand  jurors  may  take  cognizance   of  offences  within  the  jurisdiction  of 

circuit  court  as  well  as  district  court,  452. 
jurors  in  western  district  of  Arkansas,  453. 

in  Kentucky  and  Indiana,  453. 

at  special  terms  in  North  Carolina,  453. 

for  western  district  of  South  Carolina,  453. 
charge  of  grand  juries  in  Vermont,  453. 
grand  and  petit,  in  Colorado,  453, 

in  Georgia,  454. 

in  northern  district  of  Ohio,  454. 

in  eastern  district  of  Tennessee,  454. 
challenges  of  petit  jurors,  454. 
persons  excluded  in  certain  cases,  455. 

JURORS.     See  Juries. 

compensation  of,  449. 

how  drawn,  449,  450. 

how  apportioned  in  districts,  450. 

talesmen  for  petit  juries,  450. 

grand,  number  of,  451. 

foreman  of,  452. 

when  summoned,  452. 

discharge  of,  452. 
not  to  be  summoned  oftener  than  once  in  two  years,  452. 
grand,  may  act  in  cases  cognizable  either  in  circuit  court  or  district  court, 

452. 
in  western  district  of  Arkansas,  453. 
in  Kentucky  and  Indiana,  453. 
in  western  district  of  South  Carolina,  453. 
in  Vermont,  453. 
in  Colorado,  453. 
in  Georgia,  454. 
in  Ohio,  454. 

challenges  to,  how  many,  454. 
in  certain  cases,  not  qualified,  455. 
fees  of,  per  day,  473. 
mileage  going  and  returning,  473. 
qualification  and  mode  of  selection,  448. 
not  disqualified  on  account  of  color,  448. 

JUSTICES.     See  Circuit  Courts. 

allotted  to  circuits,  how  understood,  101. 

Chief  Justice  and  associate  justices  of  Supreme  Court  allotted  among  the 

circuits,  101. 
of  Supreme  Court  to  attend  the  circuit  court  in  each  district  once  in  two 
years,  103. 


904  INDEX. 

LIBEL.     See  Admiralti/ ;  Pleading;  Practice  and  Procedure. 
what  it  must  contain,  70. 
must  be  filed  before  process  can  issue,  70. 
where  several  claims  for  damages  are  united  in  one  libel,  71. 
for  assault  and  battery,  71. 
against  a  ship  and  her  tackle,  etc.,  72. 
or  information  on  seizures,  what  it  must  state,  78. 
in  instance  causes,  83. 
amendments  of,  S3, 
for  embezzlement,  93. 
LIENS.     See  Judgments. 
of  shippers,  59. 
of  material-men,  59,  60. 
for  supplies,  60,  61. 
under  bottomry  bonds,  61,  63. 
for  salvage,  62. 
for  mariners'  wages,  64,  65. 
for  pilot's  wages,  65. 
when  judgments  cease  to  be,  518. 
LIMITATIONS, 

Statute  of,  how  applied  to  judgments,  note,  497. 
statutes  on,  526-528. 

in  case  of  capital  offences,  526. 

in  case  of  offences  not  capital,  526. 

in  case  of  fleeing  from  justice,  527. 

in  case  arising  under  revenue  laws,  527. 

in  case  of  penalties  and  forfeitures,  527. 

during  the  rebellion,  528. 

MANDAMUS, 

writ  of,  an  ancient  common  law  writ,  298. 

instituted  to  prevent  a  failure  of  justice,  298. 

general  principles  applicable  to  federal  courts,  298. 

provisions  of  the  Revised  Statutes  relating  to,  298. 

functions  of  the  writ,  299. 

to  compel  the  performance  of  duties  by  an  inferior  court  or  an  officer,  299. 

not  to  control  a  judgment  or  discretion,  299. 

may  compel  a  judgment  or  action,  where  a  judgment  or  action  is  a  plain 
duty,  299. 

cannot  command  a  particular  judgment  or  interfere  with  a  legal  dis- 
cretion, 300. 

when  it  may  properly  issue,  300. 

may  be  issued  by  the  Supreme  Court  and  by  circuit  and  district  courts, 
when  necessary  for  the  exercise  of  their  respective  jurisdictions,  301. 

practice  and  procedure,  302,  303. 

when  the  writ  will  not  issue,  302. 

MARITIME  LIENS, 

jurisdiction  of  district  court,  58. 

in  suits  on  contracts  generally,  59. 

for  shipper's  liens,  59. 

by  material-men,  57,  59,  60. 

on  bottomry  bonds,  61,  62. 

for  salvage,  62. 

in  petitory  actions,  63. 

for  mariners'  wages,  57,  64. 

for  pilot's  wages,  65. 

for  maritime  torts,  66. 

for  collisions,  67. 

by  libel,  68. 

for  assault  and  battery,  68. 

for  injury  to  passengers,  69. 


INDEX.  905 

MARSHAL, 

or  deputy  cannot  act  as  attorney,  etc.,  in  any  United  States  court,  447. 
penalty  for  so  doing,  447. 

to  make  serai-annual  return  of  fees  and  emoluments  to  the  Attorney-Gen- 
eral, 465. 
what  to  be  included  in  the  return,  465. 
fees  of  in  Oregon  and  Nevada,  466. 

limit  of  allowance  by  Attorney-General,  467. 

additional  compensation  in  prize  causes,  468, 
accounts  of  to  be  carefully  examined,  468. 

certified  by  the  district  judge,  468. 

rendered  with  vouchers  and  items,  469. 

and  fees  of,  how  paid,  474. 
in  case  of  death  of  after  levy,  524. 

MARSHALS  AND  DEPUTY  MARSHALS, 

how  appointed,  28. 

deputy,  how  appointed,  28. 

ofiicial  oaths,  28. 

fees  and  salary,  28. 

bond,  29. 

suits  on  bonds  of,  29. 

bond  to  remain  after  judgment  on,  29. 
limitation  of  action  on,  29. 

duties  and  powers  of,  30. 

duty  of  deputy  in  case  of  death  of,  30. 
MASTERS  IN  CHANCERY, 

circuit  court  may  appoint  standing  masters  in  chancery,  215. 

both  judges  must  concur  in  the  appointment  of,  215. 

pro  hac  vice,  may  be  appointed  in  any  particular  case,  216. 

no  clerk  of  the  district  or   circuit  court  or  his  deputy  can  be  appointed, 
except  in  certain  cases,  216. 

compensation  of,  fixed  by  the  court  in  each  case,  216. 

reference  to,  if  the  bill  calls  for  an  account  when  complex  and  intricate,  216. 

only  made  after  interlocutory  decree,  216. 

may  take  evidence  on  written  interrogatories  or  viva  voce,  216. 

should  give  due  notice  to  the  respective  parties  of  the  hearing  on  the  refer- 
ence, 216. 

when  parties  fail  to  appear  may  proceed  ex  parte,  216. 

must  proceed  with  the  hearing  without  unreasonable  delay,  216. 

exceptions  to  report  may  be  made  by  either  party,  216. 

what  the  exceptions  should  point  out,  217. 

hearing  before  the  master,  217. 

may  examine  all  the  parties  on  the  hearing,  217. 

witnesses,  how  procured,  217,  218. 

how  accounts  must  be  brought  in,  218. 

may  examine  creditors  or  other  persons  upon  written  interrogatories  or  viva 
voce,  218. 

exceptions  to  master's  report,  when  filed,  218. 
not  in  the  nature  of  special  demurrer,  219, 
costs  on,  how  regulated,  219. 
MONEY, 

paid  into  court,  524. 

deposited,  how  withdrawn,  525. 

NEW  TRIAL, 

when  United  States  courts  may  grant,  436. 

OATH.     See  Rules. 
to  libels,  705. 
to  answer,  582. 
to  claim,  582. 


906  INDEX. 

ORIGINAL  JURISDICTION, 
of  Supreme  Court,  7. 
not  exclusive,  8. 
of  inferior  courts,  8. 

OFFENCES.     See  Crimes;   Criminal  Cases. 
on  the  high  seas,  where  triable,  439. 
begun  in  one  district  and  completed  in  another,  where  triable,  439. 

PENALTIES  AND  ^FORFEITURES.     See  District  Courts. 
where  suit  for  maj  be  brought,  439. 

PETITION.     See  Court  of  Claims. 

in  Court  of  Claims,  what  to  contain,  325,  359. 
when  to  be  dismissed,  325. 

PLEA.     See  Practice  and  Procedure  in  Equity. 

bills  may  be  amended  after,  on  the  order  of  the  court,  197. 

cannot  be  tiled  without  the  certificate  of  counsel,  198. 

may  be  filed  to  whole  or  part  of  bill,  198. 

office  of,  199. 

argument  on,  199. 

costs,  when  overruled,  200. 

amendment  of  bill  when  plea  is  sustained,  200. 

to  part  of  bill  and  answer  balance,  200. 

PRACTICE  AND  PROCEDURE  IN  SUITS  AT  LAW.  See  Circuit  Courts;  Ju- 
risdiction of  Circuit  Courts;  Supreme  Court. 

practice  and  procedure  in  other  than  equity  causes,  175. 

summons  or  other  original  process,  175. 

service  in  accordance  with  state  law,  175. 

must  run  in  the  name  of  the  President  of  the  United  States,  175. 

must  be  served  by  marshal  or  his  deputy,  except  when  he  is  a  party,  176. 

subpoenas  may  be  served  by  any  person  in  conformity  to  state  laws,  176. 

jurisdiction  over  non-resident,  cannot  be  acquired  by  attachment,  177. 

service  of  process  may  be  waived,  177. 

circuit  and  district  courts  may  make  rules  in  certain  cases,  178. 

pleading,  practice  and  procedure  to  conform  to  those  of  state  courts  of 
record,  178. 

intervention,  reference,  bail,  imprisonment,  180. 

attachments,  remedy  by,  181. 

original  process  cannot  be  served  beyond  the  limits  of  the  district  where 
issued,  181. 

the  levy  of  an  attachment  within  the  district  will  not  give  jurisdiction,  181. 

PRACTICE  AND  PROCEDURE   IN   EQUITY.     See  Circuit  Courts;  Jurisdiction 

of  Circuit  Courts  ;  Supreme  Court. 
mesne  process  and  proceedings  in  equity,  184. 
rules  prescribed  by  the  Supreme  Court,  184. 
power  of  Supreme  Court  to  regulate,  185. 
when  affirmation  may  be  taken  in  lieu  of  an  oath,  186. 
effect  of  orders  made  in  vacation,  187. 
entry  of  orders  and  motions,  187. 
rule  days,  187. 

motions  for  process  of  course,  188. 
motions  not  grantable  of  course,  188. 
subpoena  and  attachment,  proper  mesne  process,  189. 
jurisdiction  over  person  can  only  be  acquired  by  proper  service  of  subpoena 

within  the  district,  189. 
proceedings  in  rem,  authorized  in  certain  cases,  189. 
when  process  of  subpoena  returnable,  190. 
mode  of  service  of  subpoena,  190. 
alias  subpoenas,  190. 
who  may  serve,  190. 


INDEX.  907 

PRACTICE  AND  PROCEDURE  IN  EQUITY— continued. 

docketing  cause,  191. 

appearance  day,  191. 

bills  taken  pro  confesso,  192. 

when  defaults  may  be  entered,  192. 

decree  on  default,  192. 

frame  of  bills,  193. 

introductory  part,  193. 

what  may  be  omitted  from  a  bill,  193. 

what  the  prayer  for  relief  must  contain,  194. 

where  parties  are  beyond  the  jurisdiction  of  the  court,  194. 

what  the  prayer  for  process  must  contain,  195. 

signature  of  counsel  to  bills,  195. 

scandal  and  impertinence  in  bills,  195. 

order  of  reference  for  scandal  and  impertinence  in  bills,  196. 

amendments  of  bills,  when  of  course,  196. 
after  answer,  plea  or  demurrer,  197. 

when  amendments  must  be  filed  after  order  of  allowance,  198. 

demurrers  to  pleas,  198. 

demurrer,  plea,  answer,  198. 

argument  on  demurrer  or  plea,  199. 

costs  where  demurrer  or  plea  is  overruled,  200. 

amendment  of  bill  after  allowance  of  demurrer-costs,  200. 

effect  of  failure  to  reply  to  plea  or  set  down  plea  or  demurrer  for  argument, 
200. 

effect  of  answer  as  evidence,  201. 

interrogatory  part  of  bill,  answer  to,  202. 

when  the  answer  is  not  evidence,  202. 

note  at  foot  of  bill  part  of  it,  202. 

interrogatories  a  defendant  may  decline  to  answer,  203. 

replication  to  answer,  203. 

parties  to  bills,  absent  parties,  204. 

when  parties  are  numerous,  206. 

where  trustees,  executors  or  administrators  are  parties,  206. 

where  an  heir-at-law  is  not  a  necessary  party,  207. 

where  there  are  joint  and  several  debtors,  207. 

where  defect  of  parties  may  be  shown  by  plea  or  answer,  207. 

nominal  parties  need  not  appear,  208. 

injunctions,  when  granted  of  course,  208. 

bills  of  revivor  and  supplemental  bills,  209. 

when  supplemental  bills  are  proper,  210. 

answers  and  amendments  thereof,  210. 

exceptions  thereto,  211. 

when  exceptions  will  be  set  down  for  a  hearing,  211, 

answer  after  exceptions  thereto  sustained,  211. 

replication  and  issue,  212. 

depositions,  commissions  and  commissioners,  213. 

three  months  allowed  after  cause  at  issue  to  take  testimony,  214. 

testimony  de  bene  esse,  214. 

notice,  form  of  last  interrogatory,  214. 

defendant  must  answer  original  bill  before  he  is  required  to  answer  cross- 
bill, 215. 

appointment  of  masters  and  their  compensation,  215. 

reference  to  master,  216. 

hearing  before  a  master,  evidence,  217. 

witnesses,  how  procured,  217. 

how  accounts  must  be  brought  in,  218. 

examination  of  a  party,  218. 

exceptions  to  the  report  of  master,  218. 

when  master  must  return  report,  218. 

costs  on  exceptions,  219. 


908  INDEX. 

PRACTICE  AND  PROCEDURE  IN  EQ\]\TY— continued. 
decrees,  mistakes  in  may  be  corrected,  219. 
practice  in  this  conntry,  219. 
appointment  of  guardians,  etc.,  220. 
rehearing,  wiiat  the  petition  for  should  contain,  220. 
rules  made  by  circuit  courts,  221. 
decrees  in  case  of  foreclosure,  221. 

PRACTICE  IN  SUPREME  COURT.     See  Supreme  Court. 
rules  of  practice,  227. 
writs  and  process  under  seal  of  court,  227. 

signed  by  clerk,  227. 

bear  teste  of  Chief  Justice,  227. 

or  when  that  ofiBce  is  vacant,  of  the  associate  justice  next  in  precedence, 
227. 
must  bear  from  the  day  of  issue,  227. 
courts  of  King's  Bench  and  of  Chancery  in  England  afiford  outlines  for,  227. 

just  analogies,  227. 
all  process  must  be  in  the  name  of  the  President,  228. 

against  a  state  must  be  served  on  the  governor  or  chief  magistrate  and 
attorney-general,  228. 

of  subpoena  must  be  served  sixty  days  before  the  return  day,  228. 

if  defendant  does  not  appear  on  return  day  plaintiflF  may  proceed  ex 
parte,  228. 
where  forms  of  English  courts  are  not  applicable,  228. 
procedure  in  equity,  229. 
essentials  of  a  bill  in  equity,  229. 
prayer  for  process  of  subpoena,  229. 
bills  must  contain  signature  of  counsel,  229. 

when  a  state  is  a  necessary  party,  230. 
frame  of  bills  in  equity,  231.  ^ 

what  the  interrogatory  part  should  contain,  231. 
form  of  conclusion  of  bill,  231. 
leave  to  file  a  bill,  232. 
practice  in  respect  to,  232. 

proceedings  where  the  defendant  fails  to  appear,  232. 
proceedings  where  defendant  appears,  233.  * 

when  the  bill  will  be  dismissed  on  motion,  233. 
demurrer  for  want  of  jurisdiction,  234. 
certificate  of  counsel  to  plea  or  demurrer,  235. 
office  of  a  plea,  236. 

setting  down  a  plea  or  demurrer  for  a  hearing,  237. 

when  averment  of  the  bill  will  be  taken  as  true  on  argument  of  plea,  237. 
costs  on  plea  or  demurrer  overruled,  238. 
costs  on  plea  or  demurrer  allowed,  238. 

PRACTICE  AND   PROCEDURE   ON  WRIT    OF   ERROR   OR   APPEAL.     See 
Writ  of  Error  and  Appeal. 

.   appellate  jurisdiction  of  Supreme  Court,  239. 
what  may  be  reviewed  on,  239, 
final  judgments  only,  239. 
all  parties  interested  must  join  in,  340. 
proceeding  where  some  refused  to  join,  340. 
the  proper  parties  must  appear  on  the  record,  341. 
amount  in  controversy,  341. 
value  of,  a  jurisdictional  fact,  242. 
where  the  matter  is  not  susceptible  of  valuation,  243. 
where  the  value  does  not  appear  on  the  record,  244. 

stated  in  the  pleading  is  conclusive,  245. 
appeals  in  equity  and  admiralty  causes,  246. 

final  decrees  in,  246. 

where  they  are  not  final,  247-251. 


INDEX.  909 

PRACTICE  AND  PROCEDURE  ON  WRIT  OF  ERROR  OR  APPEAL— continued. 
appeals,  time  limited,  251. 
jurisdiction  apparent  of  record,  251. 
right  of  appellant  to  dismiss,  252. 
■when  dismissed  of  course,  252. 

appeals  cannot  be  taken  in  name  of  steamboat,  257. 
appeals  without  reference  to  amount,  when  allowed,  257. 
cases  tried  without  a  jury,  259. 
general  and  special  finding  of  facts,  259. 
writ  of  error  upon  an  agreed  case,  260. 
■writs  of  error  and  appeals  from  other  courts,  261. 
appeals  from  the  Court  of  Claims,  262. 
judgments  of  state  courts,  262. 
■«'rits  of  error  to  state  courts,  264. 
a  proper  question  must  be  presented,  265. 
a  specific  question  must  be  presented,  265. 
the  United  States  have  a  right  to  writ,  267. 
highest  court  of  state,  meaning  of,  267. 
■what  the  record  must  contain,  268. 
jurisdiction  not  conferred  by  consent,  268. 
constitutionality  of  state  laws,  269. 
application  of  the  statute,  269. 
review  on  error  in  criminal  cases,  270. 
transcript  and  other  papers,  270. 
rules  relating  to  transcript  and  papers,  273. 
■writs  of  error,  -when  returnable,  273. 
bond  for  costs,  273. 
appearance  of  counsel,  274. 
filing  transcript  and  docketing  cause,  274. 
duty  of  clerk  to  have  record  printed,  276. 
motion  day — argument  of  motions,  267. 
motions  to  dismiss,  276. 

and  affirm,  277. 
mode  of  service  of  notice  of  motion,  277. 
proof  of  service,  277. 
procedure  in  case  of  diminution  of  record,  278. 

■where  either  party  dockets  the  cause,  278. 

■where  a  state  is  a  party,  279. 

on  submission  of  cause  on  written  argument,  280. 

on  call  of  the  docket,  281. 

in  criminal  cases,  281. 

on  the  argument,  preparation  of  the  same,  281. 

what  the  brief  must  contain,  282. 
judgment  on  revie'w,  284. 

where  there  are  errors  apparent  of  record,  284. 

for  interest  and  damages,  285. 

for  a  trial  de  novo,  when,  286. 

allowing  parties  to  amend,  286. 

PRINTERS, 

fees  of,  473. 

meaning  of  term  folio,  473. 

PRIZE.     See  Admiralty  ;  Pleading;  Practice  atid  Procedure. 
causes,  79. 
district  and  circuit  courts  have  cognizance  of,  79. 

may  decree  restitution,  80. 
■where  property  may  be  seized,  80. 
process  in  case  of  seizure,  80. 

condemnation  of  property  employed  in  aid  of  insurrection,  81. 
property,  real  and  personal,  81. 


910  INDEX. 

PROCEDURE, 

sealing  and  testing  of  writs,  statute,  504. 

mesne  process  and  proceedings  in  equity,  504. 

in  other  than  equity  and  admiralty  causes,  504. 

on  attachments,  505. 

on  execution,  505. 

power  of  Supreme  Court  to  regulate,  505. 

may  be  regulated  by  rules  of  the  courts,  505. 

in  suits  for  dut'es,  imports,  taxes,  etc.,  506, 

in  case  of  seizure  under  revenue  laws,  506. 

consolidation  in  cases  under  revenue  laws,  506. 

orders  of  courts  to  save  costs,  506. 

when  the  marshal  or  his  deputy  is  a  party,  506. 

on  attachment  in  postal  suits,  507. 

in  case  of  application  for  warrant  of  attachment  in  certain  cases,  507. 

warrant,  duty  of  clerk,  etc.,  on  issuing,  508. 

ownership  of  attached  property,  508. 

attached  property,  when  sold  and  proceeds  invested,  508, 

publication  in  case  of,  509. 

discharge  of,  509. 

property,  under  revenue  laws,  irrepleviable,  509. 
attachments  dissolved  in  accordance  with  state  law,  509. 

garnishees  in  suits  by  United  States  on  notes,  510. 
when  indebtedness  is  denied,  510, 
failing  to  appear,  510. 
bailing  of  property  seized  under  customs,  510. 
on  property  after  condemnation,  511. 
in  case  of  seizure,  bailing  in  vacation,  512. 
bailing  in  admiralty  cases,  512. 

special  bail  in  certain  cases  for  duties  and  penalties,  512, 
where  defendant  has  given  bail  in  another  district,  513. 
bail  and  affidavits  taken  by  commissioners,  513. 
when  a  bail  bond  is  given  in  Kentucky,  513. 
clerks  may  take  bail  de  bene  esse,  514. 
amendment  of  process,  514. 

priority  of  state  on  the  docket  in  certain  cases,  514. 
notice  of  case  for  trial,  514. 

in  suits  by  the  United  States,  what  credits  allowed  defendant,  514. 
in  case  of  bill  of  exceptions,  515, 

defects  of  form,  515. 

death  of  parties,  515. 

death  of  one  of  several  parties,  516. 

suits  by  the  United  States  against  delinquents,  516, 

judgment  in  suits  under  postal  laws,  516, 
on  debentures,  517. 
on  bond  for  duties,  517. 
interest  allowed  on  bonds  for  duties,  518. 

on  balances  due  Post-Office  Department,  518. 

on  debentures,  518. 

on  judgments,  518. 
when  judgments  cease  to  be  liens,  518. 

when  no  costs  recoverable  unless  judgment  exceeds  $500,  518, 
costs  in  internal  revenue  cases,  519. 
double  costs,  when  allowed,  519. 
costs  in  suits  under  copyright  laws,  519. 

for  infringement  of  patent,  519. 
cost  of  prosecution,  when  defendant  subject  to,  520. 

may  recover,  520. 
fees  of  clerk,  etc.,  by  whom  payable,  520. 
costs  in  libels  against  vessels  and  cargoes,  520. 

in  case  of  recovery  by  claimant,  521, 


INDEX.  911 

PROCEDURE— cow^enwerf. 

costs  of  district  attorney,  521. 

of  witnesses  before  commissioner,  521. 

when  attorney,  etc.,  liable  for,  521. 

how  taxed,  521. 

bill  of  sworn  to,  522. 
executions  run  into  all  districts  of  the  state,  522. 

in  favor  of  United  States  run  into  every  state,  522. 

stay  of,  522. 

against  revenue  officers,  523. 

when  imprisonment  on  restrained,  523. 

privileges  of  jail  limits,  523. 

goods  taken  on,  how  appraised,  524. 
in  case  of  death  of  a  marshal,  524, 

money  paid  into  court,  524. 

PROCESS.     See  Supreme  Court;  Practice;  Attachment ;  Admiralty  Pleading^  PraC' 
tice  and  Procedure. 

of  arrest  and  attachment,  73. 

of  garnishment,  73. 

of  attachment,  when  dissolved,  73. 

of  execution  may  issue,  when,  74. 

when  warrant  of  arrest  cannot  issue,  74. 

in  case  of  seizure,  80. 

of  foreign  attachment,  when  libellant  may  have,  88. 

imprisonment  for  debt,  91. 

attached  property,  money  arising  from,  508. 

publication  of  notice  thereof,  508, 

discharge  of,  bond,  509. 

dissolution  under  state  laws,  509. 

under  revenue  laws,  509. 
in  admiralty,  warrant  of  arrest,  577. 

in  case  of  seizure,  577. 

attachment  against  garnishees,  583. 
of  proceeds  of  property,  583, 

on  sale,  586. 

PROHIBITION.     See  Writs  of  Prohibition ;  Forms  for  Supreme  Court, 

REMOVAL  OF  CAUSES.     See  Jurisdiction  of  Circuit  Courts. 

from  state  to  circuit  courts,  147-169. 

two  classes  of  causes  may  be  removed,  148. 

the  cause  must  be  of  a  civil  nature,  148. 

suits  arising  under  the  Constitution  or  laws  or  treaties  of  the  United  States, 
149. 

what  the  petition  for  removal  should  show,  149. 

either  party  may  remove  where  the  controversy  is  between  citizens  of  dif- 
ferent states,  150. 

where  the  controversy  is  between  citizens  of  one  or  more  states  on  one  side, 
and  citizens  of  other  states  on  the  other,  either  party  may  remove  it,  150. 

all  of  the  parties  on  one  side  of  the  controversy  must  be  citizens  of  different 
states  from  those  on  the  other  side,  152. 

where  one  party  is  an  alien,  153, 

manner  of  removal,  153. 

a  petition  for  removal  must  be  filed  in  the  state  court,  153, 

when  the  petition  must  be  filed,  153,  154. 

a  bond  must  be  filed  with  the  petition,  153,  155, 

the  statute  must  be  substantially  complied  with,  155. 

a  bond  with  a  blank  where  the  penalty  should  have  been  inserted  is  not  a 
good  bond,  155. 

the  state  court  may  pass  upon  the  sufficiency  of  the  application,  156. 

if  the  application  is  sufficient,  the  state  court  should  order  a  removal,  156, 


912  INDEX. 

REMOVAL  OF  C XV SES— continued. 

personal  citizenship  of  the  parties  required,  157. 

Avhen  the  controvers}'^  is  wholly  between  citizens  of  different  states,  157. 

a  fraf^ment  of  a  cause  cannot  be  removed,  157. 

removal  on  the  ground  of  prejudice  or  local  influence,  157. 

application  must  be  made  to  a  state  court  of  original  jurisdiction,  158. 

in  case  of'^uits  against  corporations  organized  under  laws  of  the  United 
States,  158. 

civil  or  criminal,  against  persons  denied  any  civil  right,  160. 

when  the  petitioner  in  such  a  case  is  in  actual  custody  under  process  of  a 
state  court,  161. 

removal  of  suits  and  prosecutions  against  revenue  and  other  federal  officers, 
162. 

to  determine  the  right  to  an  office  in  certain  cases,  164. 

process  of  attachment,  injunction,  etc.,  not  affected  by  removal,  165.     ^ 

after  removal,  when  suit  may  be  dismissed  or  remanded,  166. 

when  a  copy  of  the  record  should  be  filed  in  the  circuit  court,  168. 

in  case  of  refusal  of  clerk  to  return  the  record,  may  be  compelled  by  certio- 
rari, 168. 

REPLICATION.     See  Practice  and  Procedure  in  Suits  at  Law;   Practice  and  Pro- 
cedure in  Equity. 

amendments  of,  may  be  made  by  leave  of  court  after  answer,  but  before 

replication,  197. 
admits  the  sufficiency  of  a  plea,  201. 
no  special  replication  to  answer  allowed,  203. 
replication  to  answer  must  be  filed  on  or  before  the  rule  day  next  succeeding 

the  filing  of  the  same,  or  if  excepted,  next  succeeding  that  on  which  it 

shall  be  adjudged  sufficient,  212. 
effect  of  a  failure  to  reply  in  time,  212. 

REVENUE, 

suits  for,  when  brought,  439. 

RULES  OF  DECISION.     See  Courts  of  United  States. 

of  courts  of  the  United  States,  laws  of  the  several  states,  430,  431. 
construction  of  state  laws,  431. 

RULES, 

general,  of  the  Supreme  Court,  529. 
relating  to  the  clerk,  529. 

attorneys,  529. 

practice  at  law,  530. 

bills  of  exceptions,  530. 

process,  530. 

motions,  530. 

law  library,  531. 

writs  of  error,  532. 

docketing  cases,  533. 

security  for  costs,  534. 

printing  of  records,  534. 

attachment  for  costs,  535. 

translation  of  records,  535. 

evidence,  535. 

objections  to  evidence,  535. 

certiorari,  536. 

death  of  a  party,  536. 

non-appearance  of  plaintiff,  538. 
of  defendant,  538. 
of  either  party,  538. 

printing  arguments,  etc.,  538. 
general,  of  Supreme  Court,  539-545. 


INDEX.  913 

RULES — continued. 

limiting  counsel,  etc.,  539. 
providing  for  order  of  argument,  540. 
relating  to  costs,  540. 

opinions,  542. 

call  of  docket,  542. 

adjournments,  543. 

dismissal  in  vacation,  543. 

supersedeas  bonds,  544. 

suspension,  etc.,  of  injunctions,  544. 

RULES  OF  COURT  OF  CLAIMS,  593-610. 

RULES  IN  EQUITY,  546-566. 

requiring  courts  always  open  for  certain  purposes,  546. 

clerk's  office  open  on  the  first  Monday  of  each  month,  546. 
relating  to  motions  and  orders,  547. 

motions  for  process,  547. 

motions  not  grantable  of  course,  547. 

compulsory  process,  548. 

final  process,  548. 

writ  of  assistance,  549. 

parties,  549. 

subpoena  and  service,  549. 

alias  subpoenas,  550. 

day  of  appearance,  550. 

default,  550. 

decree  on  default,  551. 

bills — form  of  introductory  part,  551. 

what  may  be  omitted,  552. 

parties  without  the  jurisdiction,  552. 

prayer  for  process,  552. 

signature  of  counsel,  553. 

costs,  553. 

surplusage  of  bill,  553. 

exceptions  to  bill,  553. 

amendments  of,  554. 

order  of  court  on,  555. 

certificate  and  affidavit  required  to  demurrer  and  plea,  555, 

argument  on  plea,  555. 

costs  on  demurrer,  556. 

sufiiciency  of  demurrer  and  plea,  556. 

practice  on  plea  or  demurrer,  556. 

answer  to  bill,  557. 

interrogatories  of  bill,  557. 

answer  as  evidence,  558. 

form  of  interrogatories,  558. 

special  replication,  559. 

supplemental  answer,  559. 

parties,  559. 

when  numerous,  560. 

trustees  as  parties,  560. 

heirs-at-law  as  parties,  560. 

RULES  IN  ADMIRALTY, 

when  warrant  of  arrest  may  issue,  577. 
when  ship,  etc.,  ordered  into  custody,  577. 
in  case  of  seizure,  warrant  of  arrest,  577. 

of  perishable  goods,  577. 

of  application  of  claimant,  578. 

of  suits  by  material-men,  578. 

of  suits  for  mariners'  wages,  578. 

58 


914  INDEX. 

RULES  IN  ADMIRALTY— con^mwcc?. 

of  suits  for  pilotage,  579. 

of  suits  for  collision,  579. 

of  suits  for  assault  and  beating,  579. 

of  suits  on  bottomry  bonds,  579. 

of  suits  for  salvage,  579. 

of  suits  for  possession,  580. 

of  decrees,  580. 

of  informaiions  or  libels  on  seizures,  580. 

of  libels,  etc.,  in  instance  causes,  581. 
amendments  of,  581. 
security  for  costs  is  required,  581. 
when  a  claim  must  be  verified,  582. 
answer  must  be,  582. 
in  relation,  exception  to  answer,  582. 
in  relation  to  defaults,  582. 
requiring  further  answer,  583. 

relieving  defendant  from  answer  in  certain  cases,  583, 
requiring  answer  to  interrogatories,  584. 

verification  of,  on  oath,  584. 
in  case  of  intervention,  584. 

of  stipulation  for  costs,  584. 

of  allowance  of  exceptions,  584. 

of  attachment  against  garnishees,  585. 

of  attachment  of  proceeds  of  property,  585. 

of  non-appearance  of  libellant,  585. 

of  default,  decree  rescinded,  when,  585. 

of  sale  of  property,  586. 

of  money  paid  intt)  registry,  586. 

of  intervention  for  proceeds,  586. 
in  reference  to  commissioners,  586. 

to  appeals,  587. 

to  practice,  587. 

to  bail,  587. 

to  imprisonment  for  debt,  587. 

to  answers,  587. 

to  further  proof  on  appeal,  588. 

to  oral  evidence  on  appeal,  588. 

to  new  facts  in  answer,  588. 

to  records  on  appeal,  589. 

to  cross-bill,  security  for  costs,  590. 

to  libel  for  embezzlement,  590. 

to  proof  of  claims  before  commissioner,  591. 

to  who  may  defend  in  embezzlement  suits,  592. 

to  filing  of  libel  in  such  cases,  592. 

SECURITY  OF  THE  PEACE.     See  Commissioners  of  Circuit  Courts. 
judges  and  commissioners  may  hold  to,  436. 

SEIZURE.     See  Admiralty ;  Pleading;  Practice  and  Procedure. 
in  prize  cases,  79. 
where  must  be  made,  80. 
condemnation  of  property  under,  81. 
of  property,  both  real  and  personal,  81. 
cognizable  in  district  court  of  the  district  into  which  the  property  is  first 

taken, 82. 
for  forfeiture,  where  prosecuted,  439. 
for  condemnation  of  property  used  for  insurrectionary  purposes,  439. 

STATUTES.     See  Evidence  ;  Limitations. 

provisions  of  common  to  more  than  one  court  or  judge,  425. 


INDEX.  915 

SUITS.     See  Suits  at  Laiv  ;  Suits  in  Equity. 

for  penalties  and  forfeitures,  where  brought,  439. 

for  condemnation  in  certain  cases,  439, 

to  enjoin  the  Comptroller  of  the  Currency,  440. 

where  one  or  more  of  the  defendants  are  not  inhabitants  of  the  district,  440. 

against  absent  defendants,  practice,  441. 

must  generally  be  brought  in   district  where  the  defendant  resides  or  is 

found,  443. 
not  of  a  local  nature,  practice,  445. 

where  there  is  more  than  one  district  in  the  same  state,  445. 
relating  to  land,  etc.,  partly  in  one  district  and  partly  in  another,  446. 
in  Indiana,  446. 
in  Iowa,  446. 
in  Kentucky,  446. 

may  be  managed  by  the  parties  personally,  447. 
clerks  cannot  act  as  attorneys  in,  447. 

SUPREME  COURT.     See  Jurisdiction. 
jurisdiction  of,  7. 
limited,  7. 
not  exclusive,  7. 
organization  and  sessions  of,  222-226. 
constitution  of,  222. 
precedence  of  the  justices  of,  222. 
vacancy  in  office  of  Chief  Justice,  222. 
salary  of  justices,  222. 

appointment  of  a  clerk,  marshal  and  reporter  of  the  same,  222. 
appointment  of  a  deputy  clerk,  222. 
duty  of  the  marshal,  223. 
salary  of  the  marshal,  223. 

appointment  of  assistants  and  messengers,  223. 
duty  of  the  reporter,  223. 

salary  of  the  reporter  and  price  of  reports,  223. 
tenure  of  office  of  the  justices,  224. 
terms  of  the  Supreme  Court,  226. 
original  jurisdiction  of  at  law  and  in  equity,  227-238. 
rules  of  practice  of,  227. 

procedure  in  equity,  essentials  of  a  bill,  229. 
when  the  state  is  a  necessary  party  it  must  appear  from  the  bill  that  it  is  so 

in  fact,  230. 
where  the  suit  is  by  a  state  against  a  corporation,  it  should  be  shown  by 

the  bill  that  it  was  constituted  such  under  the  laws  of  some  other  state, 

230. 
frame  of  bills,  interrogatories,  231. 
leave  to  file  a  bill,  practice,  232. 
the  clerk  will  issue  a  subpoena,  232. 

practice  where  a  state  fails  to  appear  after  due  service  of  subpoena,  232. 
may  prescribe  rules  of  practice  and  procedure  for  itself,  232. 
proceedings  on  the  part  of  the  defendant,  233. 
when  a  bill  will  be  dismissed  on  motion,  233. 
demurrer  to  bill  for  want  of  jurisdiction,  234. 
certificate  of  counsel  required  to  demurrer  or  plea,  235, 
affidavit  of  defendant  to  demurrer  or  plea,  236. 
setting  down  demurrer  or  plea  for  a  hearing,  237. 
costs  on  overruling  a  plea  or  demurrer,  238. 
amendment  allowed  after  plea  or  demurrer  to  a  bill  is  sustained,  238. 

SUPERSEDEAS.     See  Courts  of  the  United  States  ;  Jurisdiction. 
when  issued,  note,  428. 

TORTS.     See  District  Courts ;  Jurisdiction. 

jurisdiction  of  in  case  of,  dependent  on  locality,  57. 


916  INDEX. 

TORTS— continufd. 

in  case  of,  extended,  66. 

in  case  of,  not  limited  to  the  ebb  and  flow  of  tides,  67. 
in  case  of  collisions,  67. 
in  case  of  may  be  in  rem  or  in  personam,  68. 
in  case  of  assault  and  battery,  68. 
in  case  of  injury  to  passengers,  69. 
Court  of  Claims  no  jurisdiction  in,  336. 

VERDICT.     See  Criminal  Cases. 

against  part  of  several  defendants,  418. 

"WARRANT.     See  Process;    Writs. 

in  admiralty,  when  may  issue  for  arrest,  577. 
in  case  of  seizure,  577. 

WITNESSES.     See  Evidence. 
fees  of,  471. 

detained  in  prison  for  want  of  security  for  his  appearance,  471. 
no  officer  of  court  to  have  witness  fees,  472. 
clerk  or  other  officer,  when  witness  for  the  government,  expenses  allowed, 

472. 
seamen  sent  home  as,  compensation  of,  472. 
fees  of,  before  a  commissioner,  limited,  521. 

WRITS.     See  Courts  of  the  United  States. 
of  ne  exeat,  428. 

certiorari,  note,  428. 

supersedeas,  note,  428. 

injunction,  429,  430. 
in  other  cases,  note,  429. 

WRIT  OF  MANDAMUS.     See  Mandamus. 

WRIT  OF  PROHIBITION, 

may  be  issued  by  the  Supreme  Court  to  district  courts,  293. 
ancient  common  law  writ,  293. 
ground  for  proceeding  by,  293. 
practice  in  the  Supreme  Court,  293. 

issuance  of,  limited  to  the  district  courts  when  proceeding  as  courts  of  ad- 
miralty and  maritime  jurisdiction,  294. 
will  issue  only  in  cases  expressly  provided  for  by  statute,  295. 
where  it  will  not  issue,  296. 
application  for,  may  be  by  petition  or  by  motion  supported  by  afiBdavit,  297. 

WRIT  OF  ERROR  AND  APPEAL, 

appellate  jurisdiction  of  the  Supreme  Court,  239-292. 

from  final  judgments,  239. 

all  parties  interested  must  join  in,  240. 

practice  where  a  party  refuses  to  join,  240. 

there  must  be  proper  parties  on  the  record,  241. 

amount  in  dispute  must  exceed  $5000,  241. 

no  appellate  jurisdiction  where  the  matter  in  dispute  is  not  susceptible  of 

valuation,  243. 
value  of  matter  in  dispute  a  jurisdictional  fact,  244. 
consent  cannot  confer  jurisdiction,  244. 
where  the  amount  in  dispute  does  not  appear,  244. 
when  the  value  stated  in  the  pleadings  is  conclusive,  245. 
appeals  in  equity  and  admiralty  cases,  246. 

decrees  must  be  final,  246. 
what  decrees  are  not  final,  247. 
decisions  relating  to  decrees,  248. 

time  within  which  appeal  must  be  taken  or  writ  of  error  prosecuted,  251. 
where  want  of  jurisdiction  is  apparent,  251. 


INDEX.  917 

WRIT  OF  ERROR  AND  AFPEAL— continued. 
when  an  appeal  will  be  dismissed,  252. 

review  on  certificate  of  division  of  opinion  of  circuit  cour.ts,  252. 
the  specific  point  of  law  must  be  stated,  253. 
the  question  must  be  one  of  law  and  not  of  discretion,  254. 
certificate  of  division  of  opinion  in  criminal  cases,  254. 
procedure  where  the  judges  are  divided  in  opinion  on  a  question  certified  to 

the  Supreme  Court,  255. 
appeals  in  prize  causes,  255. 

time  allowed  for  appeal,  256. 
appeals  cannot  be  taken  in  name  of  steamboat,  257. 

writs  of  error  or  appeal  in  certain  cases  without  regard  to  the  amount,  257. 
cases  not  embraced  in  the  statute,  258. 
cases  tried  without  a  jury,  259. 
general  and  special  findings,  259. 
writs  of  error  upon  agreed  case,  ^&Q.  '2-(o  (? 
writs  of  error  and  appeals  from  other  courts,  561.  2o  / 
appeals  from  the  Court  of  Claims,  562.   tt  i  n, 
judgments  and  decrees  of  state  courts,  562.  ttx 
writs  of  error  to  state  courts,  564.      xibii. 
a  proper  question  must  be  presented  by  the  record,  565. 
a  specific  question  must  be  presented,  565. 
United  States  a  right  to  the  writ,  567. 
highest  court  of  a  state,  what  is,  567. 
what  the  record  must  contain,  568. 
constitutionality  of  state  laws,  569. 
review  on  error  in  criminal  cases,  570. 
transcripts  and  papers  on  appeal,  570. 
rules  relating  to  transcripts  and  papers,  273. 
writs  of  error,  when  returnable,  273. 
bond  for  costs,  273. 

appearance  of  counsel  for  plaintiff  in  error  or  appellant  to  be  entered,  274. 
procedure  after  appearance,  274. 

on  failure  to  appear,  274. 
docketing  cases;  filing  transcript,  274. 
duty  of  clerk  to  have  copies  of  record  printed,  276. 
motion  day — Monday  of  each  week,  276. 
motions  to  dismiss  on  notice,  276. 
motion  to  dismiss  and  aflBrm,  277. 
mode  of  service  of  notice  and  proof,  277. 
procedure  in  case  of  diminution  of  record,  278. 
writ  of  certiorari  may  issue  to  bring  up  record,  278. 
procedure  where  either  party  dockets  the  case,  278. 
priority  of  state  on  the  docket  where  it  is  a  party,  279. 
submission  of  causes  on  printed  arguments,  280. 
call  of  the  docket,  280. 

preparation  of  argument,  and  procedure  on,  281. 
what  the  brief  must  contain,  282. 
judgment  on  review,  283. 

where  there  are  errors  apparent  of  record,  284. 

interest,  damages,  285. 

will  not  be  reversed  for  technical  errors,  285. 
when  a  new  trial  will  be  awarded,  285. 
when  a  cause  will  be  remanded  for  amendments,  286. 
the  court  cannot  execute  its  judgments  on  review,  but  will  send  a  mandate 

to  the  inferior  court,  287. 
mandate  conclusive  upon  the  inferior  court,  287. 

may  be  revoked,  287. 
costs  on  affirmance,  reversal,  dismissal,  288. 
opinions  must  be  recorded,  289. 
when  a  rehearing  will  be  granted,  289. 


918  INDEX. 

WRIT  OF  ERROR  AND  AVFF. XL— continaed. 

adjournments  must  be  announced  ten  days  before  the  time,  290. 
dismissal  of,  in  vacation,  290. 

duty  of  clerk  in  such  cases,  290. 
Court  of  Claims,  record  on  appeals  from,  291. 

rule  in  reference  to  the  record  strictly  observed,  291. 

petition  for  allowance  of  an  appeal  from,  291. 

order  of  allowance  of  an  appeal,  291. 

ninety  days  allowed  for  application,  291. 

proceedings  in  case  of  diminution  of  record,  292. 

duty  of  the  court  to  make  and  file  findings  of  fact  and  conclusions  of 
law,  292. 


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